Justice Brett Kavanaugh is Deciding Vote on Landmark Anti-Trust Case Against Big Tech
Shane Trejo
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Supreme Court Justice Brett Kavanaugh delivered the majority opinion in a decision earlier today for Apple Inc. v. Pepper that will remove a special legal exemption protecting Apple from certain lawsuits.
The plaintiffs argued that Apple had illegally monopolized the aftermarket for iPhone apps. Apple argued that the plaintiffs were not direct purchasers from the company even though they were buying them from the Apple store. Kavanaugh rejected this notion, siding with the more left-leaning justices on the court against Big Tech.
“Apple’s theory would disregard statutory text and precedent, create an unprincipled and economically senseless distinction among monopolistic retailers, and furnish monopolistic retailers with a how-to guide for evasion of the antitrust laws,” Kavanaugh wrote in the majority opinion.
The ruling ultimately came down to a 5-4 opinion where Kavanaugh was joined by Justices Ginsburg, Breyer, Sotomayor, and Kagan while Justices Gorsuch, Thomas, Roberts and Alito opposed the majority.
Kavanaugh made it clear with his conclusion that he is open to the idea of using anti-trust laws to bring tech giants such as Apple to heel.
He wrote: “Ever since Congress overwhelmingly passed and President Benjamin Harrison signed the Sherman Act in 1890, ‘protecting consumers from monopoly prices’ has been ‘the central concern of antitrust.'”
“The consumers here purchased apps directly from Apple, and they allege that Apple used its monopoly power over the retail apps market to charge higher-than-competitive prices. Our decision in Illinois Brick does not bar the consumers from suing Apple for Apple’s allegedly monopolistic conduct,” Kavanaugh added.
Gorsuch delivered the dissenting opinion, as he and the bloc of conservative justices believed Apple should keep their legal immunity from liability.
“No antitrust reason exists to treat these contractual arrangements differently, and doing so will only induce firms to abandon their preferred—and presumably more efficient—distribution arrangements in favor of less efficient ones, all so they might avoid an arbitrary legal rule,” Gorsuch wrote.
He hid behind the precedent of Illinois Brick Co. v. Illinois (1977) which barred indirect buyers of goods or services from being able to sue for damages, an effective way for corporations to circumvent established anti-trust law.
“If the proximate cause line is no longer to be drawn at the first injured party, how far down the causal chain can a plaintiff be and still recoup damages? Must all potential claimants to the single monopoly rent be gathered in a single lawsuit as necessary parties (and if not, why not)?” Gorsuch asked.
“Without any invitation or reason to revisit our precedent, and with so many grounds for caution, I would have thought the proper course today would have been to afford Illinois Brick full effect, not to begin whittling it away to a bare formalism,” Gorsuch wrote in his conclusion.
Conservatives who support Big Tech monopolism are criticizing Kavanaugh’s decision.
“The real question is, what is Kavanaugh doing here?” talk show commentator Rush Limbaugh said. “If you go back to the Federalist Society, Kavanaugh was cited as the best — better than Gorsuch, more conservative, more pure, this, that and the other thing. And this is the second or third time that he has aligned with the leftist. I’ll tell you what I think: I think all that [Blasey] Ford stuff worked.”
“This morning, the Supreme Court of the United States radically expanded plaintiff’s rights to commence class-actions against deep pocketed corporations. And what alliance was it? It was the four liberal members of the court and its newest member Justice Brett Kavanaugh, writing a decision that is a plaintiff’s lawyers delight,” said Judge Andrew Napolitano of Fox News.
“I did not see this coming,” Napolitano added. “All the indications about Brett Kavanaugh were that he was a monolithic conservative that wouldn’t even listen to the other side and during the course of the unfortunate hearings that he had, when he was allowed to talk about his political philosophy, he said I am not a monolithic anything, I listen to the facts and I apply the law. Today he and the four liberal members of the court radically expanded the rights of plaintiffs to bring class-actions.”
I've been skeptical of Kavanaugh as a pick since Trump named him. This is another reason why. https://t.co/EuSlQHXa4S
— Ben Shapiro (@benshapiro) May 13, 2019
Kavanaugh may be guilty of heresy to market orthodoxy for his ruling, but it shows that Big Tech is on his radar as monolithic social media corporations inflict Orwellian censorship against right-wing dissidents. It’s looking like Trump made the correct decision standing with Kavanaugh during last year’s witch hunt hearings.
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