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Quit Whining About Kavanaugh’s Anti-Trust Opinion.

Seriously, just calm down. It’s fine.

On May 13, The Supreme Court handed down Apple Inc. v Pepper, and held that the tech giant’s App Store customers can sue it for alleged violations of antitrust law.

Justice Kavanaugh’s decision in Apple is not some harbinger of incipient leftism.

Notably, the recently-confirmed Justice Brett Kavanaugh wrote the majority opinion, joined by the court’s four liberals. Justice Gorsuch dissented, joined by Chief Justice Roberts, Justices Alito, and Thomas.

This surprising outcome has split the conservative Twittersphere. Some are applauding Justice Kavanaugh for taking a stand against Big Tech; others are not fans.

By way of example, the normally circumspect and judicious Jesse Kelly writes: “Kavanaugh is standard Washington, D.C. GOP: Respond to the Leftists trying to rip apart your life and your career by groveling a little more and begging for scraps from the table of approval.”

The recently-“destroyed” Ben Shapiro has apparently recovered enough to express similar views: “I’ve been skeptical of Kavanaugh as a pick since Trump named him. This [case] is another reason why.” The usually astute Josh Hammer has written a broadside suggesting that Kavanaugh is becoming an “ally to the left.”

This is all much ado about nothing. Justice Kavanaugh’s decision in Apple is not some harbinger of incipient leftism. The antitrust question in Apple required the Justices to parse, and apply, a poorly written, unclear, and bizarre Supreme Court decision: Illinois Brick Co. v. Illinois, decided in 1977.

THE WEIRDNESS OF ILLINOIS BRICK

Why is Illinois Brick bizarre? And why would the Supreme Court reach a bizarre decision? Well, the Court had a problem with the seemingly massive number of potential plaintiffs in antitrust cases. Modern supply chains are complex beasts, with many middlemen in between the creator and the end user of a particular product. As a result, the “damages” caused by monopolistic practices at the top of the supply chain are felt by a wide variety of actors downstream – all of who could theoretically sue.

The Court had, in its view, two options.

Senate Anti-Trust Sub Committee, John Taylor, Flickr (CC)

They could let everyone downstream in the supply chain sue the alleged violator of the antitrust laws, and let them fight among themselves over how to apportion damages. Alternatively, they could limit the ability to sue to those who contracted directly with the defendant, letting them collect all the damages caused by the defendant’s monopolistic practices.

In Illinois Brick, the Supreme Court decided on the latter approach, holding that only “direct purchasers” could sue for antitrust violations. The Court’s rationale? In short: apportioning antitrust damages between so many plaintiffs is really hard, and beyond the capacity of judges; better, instead, to have a rule saying only “direct purchasers” can sue.

This rule is bizarre. The Court in Illinois Brick created a novel, judge-made limitation on who can be a plaintiff in an antitrust case, with no statutory basis. To explain: Section Four of the Sherman Act, which should determine who can sue under the antitrust laws, provides that:

[A]ny person who shall be injured in his business or property by reason of anything forbidden in the antitrust laws may sue…the defendant.”

If Gorsuch and Kavanaugh, both good textualists, were on the Supreme Court in 1977 and were interpreting the Sherman Act from scratch, they would likely agree that “any person” in Section Four really does mean “any person,” and hold that the Illinois Brick rule is ridiculous and arbitrary. But they are on the Court in 2019, and they are bound by this weird, old, poorly-reasoned precedent.

Stare decisis can be a real pain.

Apple can charge a ridiculously large commission on app sales, and developers and customers have no choice but to pay it because of Apple’s monopoly.

RESOLVING THE APPLE CASE

Fast forward to Monday’s decision. Apple Inc. v. Pepper is a difficult case because its facts create tension between Illinois Brick’s rule (that only “direct purchasers” may sue for antitrust violations) and its reasoning (that judges shouldn’t have to apportion damages among a bunch of plaintiffs).

Here’s the gist of the underlying antitrust claims: Apple can charge a ridiculously large commission on app sales, and developers and customers have no choice but to pay it because of Apple’s monopoly. The plaintiff’s lawyers argued that App Store customers should be able to sue Apple for alleged price-gouging. They appealed to the rule of Illinois Brick; because consumers directly purchase apps from Apple, they are obviously “direct purchasers.” Kavanaugh’s majority opinion adopted this view. It’s not hard to understand the logic.

Apple’s lawyers appealed to the rationale of Illinois Brick. They argued that because Apple takes a percentage of sales and does not set prices, App Store customers are the wrong plaintiffs. Both the customers and the app developers were allegedly damaged by Apple’s practices. The entire point of the Illinois Brick rule was to eliminate the damage apportionment problem. Apple’s lawyers argued that letting App Store customers sue Apple would bring that problem back. It’s a reasonable argument; one can understand why Gorsuch and the conservatives adopted it.

Glen Bledsoe (Flickr, CC)

Notice how obscure this argument is. This is not some grand dispute about the virtues or defects of antitrust law; it’s about the meaning of one specific Supreme Court case, and just who should be allowed to sue for an antitrust violation.

After reading Justice Kavanaugh’s majority opinion and Justice Gorsuch’s dissent alongside Illinois Brick and its progeny, it’s not clear to me who has the better of the argument. This isn’t a statutory interpretation case, where there is usually a “best” reading. Gorsuch and Kavanaugh are arguing about the best way to interpret a poorly written opinion. It’s easy to see how they could reach different conclusions, even if they approach judging in the same way.

Much ado about nothing.

A SECRET LEFTY?

But, the Kavanaugh haters say, what about the policy consequences of the Apple decision?

Hammer, for example, argues that there is nothing conservative about expanding anti-trust law, which is the ultimate effect of the Apple holding. In 2019, however, it’s not clear at all that antitrust should be anathema to the right. The conservative movement is facing a novel problem: massive, monopolistic big tech companies are staffed top-to-bottom by leftists that want to destroy us. Why is it “not conservative” to bring these corporate behemoths to heel? Antitrust law is a useful weapon; one that we should preserve.

Kavanaugh’s record on issues like immigration and gun control is absolutely stellar. And the idea that he’s going to turn wobbly is belied by the fact that the Democrats on the Judiciary Committee tried to turn him into public enemy #1.

Still, Hammer argues, Kavanaugh’s heresy is not limited to antitrust. Among other examples, he points to Kavanaugh’s seeming squishiness on death penalty cases. It’s not clear why this should be a litmus test for conservatism in 2019. Death penalty law has been a doctrinal catastrophe for years. Under current law, it takes decades for capital cases to work their way through the courts. There are more pressing matters at hand.

What about abortion? Hammer suggests that Kavanaugh’s decision to join with Roberts in denying certiorari in certain Planned Parenthood cases suggests he’s soft on Roe v. Wade. That’s a stretch. Certiorari is denied in more than 99 per cent of cases, and denials of certiorari do not set precedent. We should wait for an actual precedential decision before getting despondent.

Kavanaugh’s record on issues like immigration and gun control is absolutely stellar. And the idea that he’s going to turn wobbly is belied by the fact that the Democrats on the Judiciary Committee tried to turn him into public enemy #1. We should respect his fortitude, and remember that his confirmation likely prevented an even bigger electoral bloodbath for Republicans in the midterms.

It’s possible that Kavanaugh will turn out to be the squishy moderate that some conservatives fear. I doubt it. Kavanaugh might seem heretical to market fundamentalists. But for nationalist conservatives, right now Kavanaugh is everything we could have asked for.

Will Chamberlain is the publisher of Human Events

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Written By

Will Chamberlain is a lawyer and the publisher of Human Events.

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