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.

FBI Director Christopher Wray, Yale Class of 1989, Comments on Investigation of Brett Kavanaugh, Yale Class of 1990

FBI Chief Says Kavanaugh Investigation Was ‘Limited In Scope’ At White House Direction: Wray’s comments contradict White House claims that the Senate controlled the probe into the sexual assault allegations against the now-Supreme Court justice.

Worse Than a Crime

crime blunder

The Readings

McConnell calls opposition to Kavanaugh a ‘great political gift’ to Republicans

Contrary to what you probably thought, this first one is not from The Onion. Nor are the others.

Philip Bump, Senators representing less than half the U.S. are about to confirm a nominee opposed by most Americans

Deanna Paul, When Kavanaugh is confirmed, impeachment could follow. Here’s how.

Emily Atkin, Why Republican Women Defend Brett Kavanaugh

And finally,

Christine Blasey Ford’s Attorneys Reveal Statement From Corroborating Witness

The Lessons

Republican senators have said fie on the National Council of Churches, spit on the American Bar Association, and scorned 2,400 professors of law. Exercising raw, patriarchal power, they are reading themselves out of polite society.

Here are a few thoughts.

One. When you build your political career on a foundation of lies, you are likely, sooner or later, to come to believe much of your own bullshit.

Two. Believing your own bullshit can make you feel better and provide a comforting sense of solidarity with your tribe. But there is a downside: it can lead to blunders.

Three. It’s vital that progressives should continue to develop the evidence about Kavanaugh’s background, but it’s equally vital not to leap to conclusions prematurely. Develop the relevant facts. Then make a reasoned judgment.

Right now, we have some information about what Kavanaugh was doing at his Georgetown house parties and his Yale fraternity. But all the witnesses have not been interviewed. And there is likely a great deal of written evidence in the form of e-mails, texts, and the like. Come 2019, the House Judiciary Committee needs to develop and lay out the evidence.

The full picture will be either (i) pretty bad for Kavanaugh, but one that could be made to look defensible, or it will be (ii) generally horrific and utterly indefensible.

You and I have a strong suspicion about which it will be. But, ladies and germs, there is a very great gulf between a strong suspicion and a reasonable, well founded conclusion.

If our suspicions turn out to be wrong, then so be it. If our suspicions turn out to be right, then we go from there.

Four. Help the Republican women to resolve their cognitive dissonance.

Ms. Atkin, supra, helpfully informs us large numbers of Republican women feel cognitive dissonance over the elevation of a morally unfit conservative judge, and that 69 percent of them have decided to resolve their cognitive dissonance in favor of disbelieving the accuser.

Actually, I find that information reassuring. It suggests that disclosure of the fuller picture could help a lot more Republican women resolve their cognitive dissonance in the other direction.

And it suggests that the Republican patriarchs have already lost 31 percent of their own women. Some political gift, Mitch.

Five. Make the Republican patriarchs defend the manifestly indefensible.

You have to develop the facts before this will work. But as the facts do come out, make McConnell and Cornyn and the whole ghastly lot of them try to defend what has happened.

Plainly, they think that a little attempted rape among high-spirited young conservatives is not a disqualification.

Plainly, they think that false accusations of assault are a much bigger problem than actual assault.

Make ‘em say it.



With increasing clarity.

If you are a mensch, just grab ‘em down where the hairs are short. Hold on. And keep on squeezing.

by the balls

Senator Grassley Remembers the Ladies

remember 2

Sen. Charles E. Grassley (R-Iowa) told reporters that the Senate Judiciary Committee’s inability to attract Republican women might be caused by its heavy workload, a remark the panel’s chairman tried to retract a few minutes later.

“It’s a lot of work — maybe they don’t want to do it,” Grassley told [reporters].

Washington Post

Well, sure, I am going to vote yes on Kavanaugh, sweetie. Don’t become hysterical. But I just feel so awful it had to happen like this. It’s such a shame, I think.

I just think, dollface, if there is one thing that came out of all this, sugar, that was good, it is, pumpkin, that you got to have your say. Baby, you got to stand up in front of all these people and bear witness to what you felt like you had experienced, like a big girl! It was so important, and I absolutely believed you, sweetheart! …

I think the people who should feel bad, though, honey pie (not you, of course, duckling!) are the people who told you that if you said something, it might matter. That was mean of them. What was so cruel was that you, baby girl, had to bear witness thinking that something would happen. I suppose you didn’t know, sugar tits, that nothing was going to happen, doll baby. But I was so inspired by you and what you did! It was so brave, pudding! It was so wonderful, toots!

Alexandra Petri, But I hope you feel empowered, sweet cheeks

The Slough of Despond


This afternoon Dr. Aardvark was down in slough of despond, she was down inthe inner city, registering  voters. That’s what we need to be doing.

At dinner, she and I ate with a couple of progressives suffering from deep despair. I do not share that despair, not only because despair is not an emotion in which we have the luxury to indulge, but also, I think, for logical reasons as well.

Progressives Need to Place More Reliance on Political Activism, Less Reliance on Judges

For many of us, when we think of the Court, the first thing that probably comes to mind is Roe v. Wade, and the second thing that probably comes to mind is gay marriage. Obviously, very important stuff. But Matthew Yglesias gives enormously important perspective in a post this evening titled Brett Kavanaugh’s confirmation will delegitimize the Supreme Court — and that’s good: It’s time America woke up to the radical right that’s run the Court for years.

I don’t have the mental energy this evening to summarize it or selectively quote from it. But I highly recommend it.

There are other reasons not to wallow in the slough of despond this evening, but I’ll close with one of them.

They Didn’t Remember the Ladies

Abagail Adams

If you energize the most extreme elements of your tribe, you risk splitting the tribe by alienating the ones with good sense. The Democratic tribe is quite a bit larger than the Republican tribe. We could alienate some of our ilk and still be larger in numbers than the Republicans. But when Republicans practice the politics of subtraction on their own tribe, they risk shrinking themselves right into political irrelevance.

Except, of course, in deep red states where Republican tribal feeling runs high. There are Senate races this year in several such states.

That is presumably why Machiavelli McConnell and Doofus Donald didn’t just pull Kavanaugh and insert an equally conservative, less inclined to commit assault before he drinks himself under the table.

But, in their machinations, they forgot the Republican ladies.

We must make sure that the Republican ladies never forget them.