Apple v. Pepper, Kavanaugh v. Gorsuch: Here’s a Howdy Do

You probably wouldn’t want to leave your daughter alone with Brett Kavanaugh, but it’s looking like he might turn out to be not the world’s worst Supreme Court justice.

In Apple v. Pepper, decided today, Kavanaugh not only joined with the Court’s four liberals to hand an initial victory to consumer class action plaintiffs, he also wrote the opinion for the majority. Justice Gorsuch joined with the Chief Justice and the two other wingnuts in dissent. Their interpretation of antitrust standing would have shitcanned consumers, to the enrichment of plutocrats.

Apple’s App Store Monopoly

If you want an app for your iPhone, you have to buy it from Apple, at its App Store. You can’t get it anywhere else. And Apple has some rules for developers: you have to pay Apple a 30 percent commission on sales, and your price has to end in 99 cents. Subject to those rules, you can set whatever price you want, and you can sell as many apps as you can persuade people to buy, and Apple will remit the proceeds of the sale—less, of course, the 30 percent commission.

The district court allowed a class action of plaintiff iPhone owners to proceed, on the theory that Apple had unlawfully created, maintained, and profited from a monopoly in the retail sale of iPhone apps.*

How to Apply an Old—and Wrongly Decided—Precedent?

In 1977 the Supreme Court decided Illinois Brick Co. v. Illinois, ruling that only direct purchasers may maintain antitrust litigation to recover damages in the nature of an “anticompetitive overcharge.” I used to be a great fan of the Illinois Brick decision, but I was wrong. The Court’s decision was based on some pretty sophisticated reasoning about economics and efficiency in litigation, but it was wrong because it generally produced unjust results. “Direct purchasers,” such as wholesalers, typically pass on most or all of the “overcharge,” but the Illinois Brickdecision rewarded the middlemen while leaving the ultimate consumers out in the cold, and holding the bag. Because it was unjust, the decision resulted inconsiderable legal chaos. (I don’t want to prolong this post by elaborating. Just trust me on this.)

Now, back to the current case: Apple against the consumer class. Apple tried to get the case thrown out because (so it said) the real direct victims of its little retail monopoly were the app developers—the people who paid the exorbitant 30 percent commissions and who had to decide how much of that exorbitant price they could get away with passing on to the iPhone users.

The consumer plaintiffs, however, had a comeback argument that appealed to the four liberals and to Justice Kavanaugh. Their argument was that whatever injustice the Illinois Brick rule might work in other situations, here the plaintiff consumers were indeed direct purchasers from Apple, and paid the anticompetitive overcharge directly to Apple. They were clearly “direct purchasers.” They had a plausible case on the merits. They fit right within the literal language of the 1977 case. So let them proceed to trial.

In my view, both sides had decent technical legal arguments. But Kavanaugh’s analysis was the more persuasive, the more straightforward, and the result that best vindicated the interests of justice. Gorsuch, by contrast, did a good job twisting himself into a pretzel in an unsuccessful effort to protect a powerful defendant against a plausible antitrust claim. Gorsuch would have relied on the logic and reasoning of Illinois Brick to extend the reach of the case and apply it to a novel situation, contrary to its literal language. That’s not the way the law should work. Where a case with precedential value was wrongly decided, you don’t extent it, you limit its reach.

The Lesson: A Fine Howdy-Do?

I don’t normally write about weedy antitrust issues on Trumped Progressives. But today’s opinion, read in light of this morning’s New York Times article on Kavanaugh and Gorsuch, conveys some faint hope that Justice Kavanaugh may actually try to do justice in the forthcoming constitutional struggles.

After all the storm surrounding his nomination and confirmation, it would be, would it not, a fine howdy-do if it turns out that Brett Kavanaugh’s historical destiny is to be the deciding vote against Trump and tyranny and in favor of the checks and balances underpinning the republic?

And Before I Go

This from Doyle McManus at the L.A. Times, Suddenly, conservative lawyers are condemning Trump for abuses of power.

 

* Allegations that manufacturers are monopolizing products designed to work with the basic product are common, and have been somewhat controversial. The argument would go like this. IPhones compete heavily with android devices. And, when you’re deciding whether to by an iPhone or a Samsung phone, you may look not only at the features and price of the phone itself but also at the features and prices of the available apps that could be used with either phone. So when you lump in the android apps into the market, Apple doesn’t have a monopoly all, or so the argument would go.

But that argument wasn’t part of the Apple v. Pepper case, at least not at this stage.

A Conspiracy Against Trump?

Let us, for a moment, do this thought experiment: let us think, not like a person of everyday decency and common sense, but instead like a professional Republican politician.

You have a dilemma. On the one hand, you have a Trump problem. His trade war threatens to flush the economy down the crapper. Even worse—yea, verily, even worse—his electability is very much in doubt. Look at 2018. Look at Texas today, where polling shows Biden beats Trump.Just by the hair of his chinny-chin-chin. But Biden still wins. In Texas.

But the other horn of your dilemma is that Trump remains highly popular among the Republican voting masses.

With all that in mind, keep on trying to imagine yourself a professional Republican politician. Ask yourself, how can we professional Republican politicians possibly escape this dilemma?

I’m not talking detailed tactics here. I’m talking overall strategy; the tactics can be filled in later.

Obviously, the general strategy would be to play Trump’s lickspittle in public, but to conspire against him in private.

With all that in mind, I commend to you this from thebulwark.com: Christian Vanderbrouk, Mike Pence, Leader of the Resistance? He could be in real trouble if the Trumpist media ever actually reads [sic] the Mueller report.

The Nature of His Delusions

cat and lion

Greg Sargent, Trump is staking reelection on one of his biggest lies

Yes, I know. You are sick and tired of Trump’s bullshit, and just wish it would all go away. Brethren and sistern, I feel your pain.

Nevertheless, he is still with us, at least for a season longer. And as long as he is still with us, it is worth knowing how much of his bullshit he believes, himself, and how much consists of stick-in-the-throat lies. By now, it’s plain there is some of each. But as time marches on, and we gain yet more familiarity with his disordered mind, it seems, at least to me, that the portion of his bullshit consisting of plain lies goes up, and the proportion consisting of rooted factual delusion is relatively low.

Greg Sargent does a nice job of dissecting Trump’s lies relating to trade with China—and how he’s preparing the ground for a loss in the trade war.

The delusion lies largely not in counterfactual beliefs on issues such as who pays the tariffs, but rather in the counterfactual belief that he can keep on bullshitting his way through life and get away with it.

**

Welcome to today’s readers from Canada, the Philippines, the UK, and the United States. Also to the good folks from Thailand who took a look in the last few minutes.

No Balls at All

No, Charles Blow, Democrats are not “bringing their letter openers to a gunfight.” And in no way, shape, or form are they “scared witless.”

Democrats face an unprecedented and challenging situation. It shows neither lack of wit nor shrunken cojones to proceed cautiously and think carefully about how to play the cards they have.

Jerry Nadler is a mensch. And so is Nancy Pelosi.

Mr. Blow’s colleague David Brooks makes the opposite mistake: accusing Nadler of declaring a bogus constitutional crisis.

Jonathan Chait roasts Brooks on a spit and eats him for lunch.

Em … em … good.

We do have a constitutional crisis on our hands. Crises are not handled well by folks who stick their heads in the sand. Nor is JUST DO SOMETHING!!! likely to lead to an optimal outcome. Cojones are wonderful, but you need to think with your frontal lobe.

Get a grip, people.

trucknutz

Should We Rend Our Garments? Or Should We Just Savor the Sour Smell of the Flop Sweat?

Jeffrey Toobin, The Constitutional System is not Built to Resist Trump’s Defiance of Congress

Washington Post Editorial Board, Don’t let Trump run out the clock in court

Greg Sargent, The big unanswered question at the core of Trump’s corruption

checks-and-balances.org

Toobin—who, I think, should know better—goes the garment-rending route, lamenting that there is no effective constitutional check on Trump’s ability to stonewall. Sargent, meanwhile, savors the flop sweat, and expatiates on the point that Trump, sure as shootin’, is mighty scared of something. (Could it be that he’s been running a criminal enterprise, fueled by Russian mob money?)

There are lots of things we don’t know, and a few things we do know, or at least should know.

We know that, in the next weeks and months, it will be up to the courts to deal with Trump’s stonewalling of Congress. We don’t know how well or how badly the courts will do their job. But we can anticipate, I believe, that if the courts do their job—I said “if”—Trump will probably defy the courts just as he is defying Congress. And we can reasonably anticipate that, if and when Trump defies the courts, it will be up to other institutions—maybe including the military—to uphold the Constitution, or just to let the country devolve into a banana republic.

As I said, we don’t know what the courts will do, but let’s identify some of the straws in the wind, with particular focus on how the Federalist Society judicial types might react to the coming legal challenges.

 Four Straws in the Wind

(1) As I noted in an earlier post, predictions that Trump will “run out the clock” do not fully take into account that courts have wide discretion over the pace of any particular lawsuit. As the Washington Post editorial notes, a district judge has just availed himself of that power to fast track Trump’s effort to block his own accounting firm from turning over financial records to the House Oversight Committee.

(2) You will remember how Sherlock taught us to listen for the sound of dogs that did not bark in the night. Well, here’s an example of a non-barking dog. Remember that statement signed by hundreds of former federal prosecutors, opining that they would definitely have charged obstruction based on the facts in the Mueller report?

Well, who from the Federalist Society contingent has stepped up to say they were wrong? Pretty much, nobody.

(3) Don McGahn, former White House counsel and Mr. Federalist Society court-packer extraordinaire, hasn’t exactly gone out of his way to defend Trump.

If, by chance, you are a newly appointed Federalist Society judge, and if you plan to decide cases based on gratitude instead of on the facts and the law—and perish the thought that any judge might hold such an attitude, but I’m just sayin’—then you have a much better reason to be grateful to McGahn than to Trump.

(4) An active contingent within the Federalist Society is urging the courts to do justice and to protect the Constitution. Check ‘em out at checks-and-balances.org.

And there is more at stake than mere constitutional principle. One reason why rightwing judges might want to preserve checks and balances is the fact that the next president may be a Democrat.

So I, for one, will be cautiously optimistic as I savor the sour smell of the flop sweat.