Ahead of President Trump’s announcement of a nominee to the Supreme Court to replace Justice Anthony Kennedy, analysts and talking heads have been making claims and staking out bets about what the next ideological balance of the high court will look like. And about what a more heavily entrenched conservative majority on the court will mean for almost every aspect of American life.
Increasingly, the court is being called on to weigh in on cases involving tech, privacy and the Internet. Which is why the bruising fight to confirm Trump’s nominee — which the president has said he’ll unveil on Monday, July 9 — is worth watching closely, because he or she will be replacing what press accounts describe as a more or less pro-privacy justice in the form of Kennedy who tended to not want to bring too heavy a hand to tech-related decisions.
Here’s what former Kennedy law clerk Joshua Matz told Wired about what his retirement means: “Without him, the court will have lost one of its leading thinkers on the question of how our evolving constitution can meet the needs of a more advanced society.”
Kennedy’s overall record on tech is, to be sure, mixed. Take the majority opinion he wrote in City of Ontario v. Quon, in which he argued that companies that keep tabs on text messages sent and received on company-owned devices aren’t violating a worker’s privacy.
He also wrote the majority opinion in Packingham v. North Carolina, overturning state laws that bar convicted sex offenders from using most social media. Here’s a line from that opinion — “The Internet’s forces and directions are so new, so protean, and so far-reaching that courts must be conscious that what they say today may be obsolete tomorrow.”
Wired pointed out in a recent look at his legacy that he dissented on a case in which the majority ruled the government doesn’t have carte blanche to access cell site location records without a warrant, but he was part of a separate unanimous decision that said the government has to get a warrant to search your cell phone.
Anyone familiar with the term “The Frightful Five” will recognize it as a reference among tech press types to the biggest, most entrenched and powerful U.S. tech companies, a phrase which generally refers to Amazon, Apple, Facebook, Microsoft and Google parent company Alphabet. Among the things that makes them so “frightful” is the power they’ve amassed and how much of our data they possess.
Lawmakers didn’t accomplish much of anything when they dragged Facebook CEO Mark Zuckerberg in front of Congress earlier this year to grill him about various aspects of the social network. But when they did so, it suggested that lawmakers — whether they know what they’re doing or not — are wanting to play more of a role in regulating and reining in those frightful five.
“Even Senator Ted Cruz — usually a foe of government regulation — recently warned of their ‘unprecedented’ size and power,” The New York Times noted in March. “While the potential tools for redressing the harms vary, a growing chorus is calling for the use of antitrust law.”
Which brings things back to filling the void on the Supreme Court left by a member who often cast deciding votes in close cases. Elections, as they say, have consequences, and Trump is about to show us just how true that is come Monday, when he reveals his pick for Kennedy’s replacement that will likely lurch the court even farther to the right.