One way to think about the divide among the six Republican justices is that Roberts, Kavanaugh, and Coney Barrett are Corporatists, while Thomas, Alito, and Gorsuch are Individualists. When it comes to clear-cut business versus government cases, all six may tend to favor the private actors. But in our new world, where corporate and government interests have often merged, where private and public have sometimes blurred, the former three tend not to see the new corporate threats to individual liberty.

A new essay from Georgetown law professor Randy Barnett highlights this blind spot.

“Finally, libertarians need to be as concerned with corporate state fascism as they are with state socialism. There are no corporations in the state of nature. As some nineteenth-century libertarians recognized — and some left libertarians insist today — there comes a point at which the size and scope of private corporations can pose as great, if not a greater, threat to liberty than government power — especially as the two become intertwined in ways that are difficult to disentangle in practice as we have witnessed in recent years.

“Imagine, for example, if the current handful of cell phone providers began electronically screening our calls for subversive communications, canceling those who were found to transgress some alleged moral norm. Would the fact they are “nongovernmental” make them any less a threat to individual liberty?”