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.

It’s a Conspiracy!

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The commentariat is atwitter today with claims that Judge Gorsuch, his handlers, and even Trumplethinskin himself conspired to publicize the judge’s discomfort with presidential statements that aim to intimidate the judiciary. All this in a Machiavellian scheme to wear down Democratic resistance to the nomination.

Maybe these claims of conspiracy are right. Aardvark would not know.

But Aardvark does know two or three things.

First, although Senator Aardvark would vote against the good judge, the judge seems to be a decent person who tries to do the right thing, as he sees it.

Aardvark, who has seen a hairy situation or two, has never encountered a circumstance that was improved by gratuitous impugning of motives.

Second, the conspiratorial explanation does not pass Occam’s test. Here is the more parsimonious explanation.

  1. Judge Gorsuch knew that he was in a highly visible situation in which he would be asked a difficult question.
  2. In view of the foregoing, Judge Gorsuch—like any serious person, and, in particular, like any serious member of the bar—gave some thought to what words he would use to answer the anticipated difficult question, and the circumstances in which he would use those words.
  3. Being a decent and competent jurist, Judge Gorsuch is in fact appalled by presidential attacks on the judiciary.
  4. When the time came, and when the difficult question was asked, Judge Gorsuch responded in a way that (i) reflected his actual opinions and (ii) used the words he had decided in advance to use, in order to express his actual opinions.

Mystery solved. Parsimoniously.

Six Initial Thoughts on the Gorsuch Nomination

Few wait with baited breath for Aardvark’s initial comments, but what the hell, I’ll share them anyway.

  1. It could have been worse. (See this reaction by Obama’s solicitor general, Neal Katyal.)
  2. Someone who makes a point of not showing undue deference to the executive branch is not a bad guy to have at this point in history.
  3. Accordingly, this time around the better part of wisdom would be for Democrats to participate actively in the hearings, listen to get a sense of his character and views, and then decide whether it’s someone they can support. If fundamental problems arise out of the testimony, vote no. If not, abstain or vote yes.
  4. Progressives need to take a clear stand on the stolen seat issue. 2018 and 2020 are both election years. They should declare in advance that they will refuse to anyone Trump might nominate to fill any Supreme Court vacancy that occurs in those years. Not because they agree with the Republicans’ having deducted one year from Obama’s term of office, but because turnabout is fair play.
  5. If a vacancy does occur in one of those years, the Democrats filibuster, and the Republicans invoke the nuclear option, then so be it. The filibuster is on the way out anyway, and it should be on the way out as long as its going to be abused. Jonathan Chait says let the Republicans kill it, and I tend to agree.
  6. Finally, just for laughs, I hope someone of a scholarly bent will provide a detailed, reasoned catalog of legal issues on which Gorsuch and Garland would probably vote differently. That might make for a reasonably informed discussion. And God forbid that we should have an informed discussion on a matter such as this.