Justice Kavanaugh, in the Apple iPhone Case, Didn't Break with the Trump Court -- He's Leading It

KAVANAUGH'S APPLE DECISION WAS CONSERVATIVE. • • • TheHill called Kavanaugh's opinion a "break with the conservative Trump Court" : "Supreme Court Justice Brett Kavanaugh sided with the liberal wing of the Court in a Monday ruling that found iPhone users can sue Apple over App Store prices, a significant and surprising decision that shows the Trump nominee isn't afraid to buck the Court's conservative majority. While Kavanaugh has consistently aligned himself with the Court’s more conservative justices, he has from time to time broken rank to join the Supreme Court’s liberals. And the newest justice did so again with his ruling in the Apple case on Monday, in which he authored the opinion, finding that iPhone users can move forward with a class-action lawsuit against the tech giant over allegedly inflated app prices. Some conservatives said the ruling is a sign the newest conservative member of the Court can’t be trusted to always rule in their favor." • Of course, the kneejerk conservatives jumped all over Justice Kavanaugh, starting with Ben Shapiro, who said : "I've been skeptical of Kavanaugh as a pick since Trump named him. This is another reason why.” Fox News legal analyst Andrew Napolitano also said during an appearance on Fox News that he “did not see” Kavanaugh’s decision in the case coming : “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.” • Kavanaugh has sided with the liberal side of the Court several times, as TheHill points out : "Both he and Chief Justice John Roberts joined the liberals in December as they rejected requests to hear cases seeking to block Planned Parenthood from receiving Medicaid funding. And Kavanaugh and the liberal wing ruled in March to order a stay of execution for a Buddhist inmate in Texas, as the state's policy at the time prevented his spiritual advisor from being in the room during the moment of death. Kavanaugh wrote the concurring opinion for the order." • TheHill said that conservative Justice Samuel Alito was not happy with the Kavanaugh opinion : "At least one conservative justice on Monday made his displeasure with Kavanaugh’s ruling known : Justice Samuel Alito wrote a biting opinion that called it 'seriously wrong' and argued that by reviewing last-minute appeals in death penalty cases, the Court is 'inviting abuse.' Kavanaugh responded to Alito’s opinion with a statement, saying that while he has 'great respect' for the justice’s dissent, he believes the Court made the right call." • BUT, Kavanaugh has broken with the conservative side of the Court rarely since he was confrimed. TheHill interviewed Geoffrey Stone, a law professor at the University of Chicago, who said that it’s not surprising for a new justice like Kavanaugh to largely side with the justices he’s ideologically aligned with : “ 'The normal justice who is new to the Court is likely to be reasonably cautious in making sure he gets the lay of the land,” Stone said. But he noted that just because Kavanaugh is consistently ruling with the conservative wing of the Court now doesn’t mean that he will necessarily do so going forward. Stone pointed to Kavanaugh’s age as potentially shaping his future role on the Court: At 54, the justice could serve for decades. And he said that, with the Court repeatedly issuing 5-4 opinions along ideological lines, some justices may fear that their decisions are seen as being made with a partisan tint. 'The justices have to be seen, not only by the citizens but especially by lawyers and judges below them, as deciding cases on the basis of honest judgement about the law,' Stone said, or the Court could risk losing its legitimacy. • However, Cornell law professor George Hay says he wasn’t shocked by Kavanaugh’s decision. He said the Justice signaled during his ruling on the Anthem-Cigna merger as a judge on the DC Circuit Court of Appeals that he would favor solutions in antitrust cases that would benefit consumers. During that case, Kavanaugh said he would favor the merger because customers could see lower costs. "Kavanaugh said, ‘Wait a minute. Aren’t the antitrust laws all about consumers?’ ” Hay said of the justice’s previous opinion. Hay said that the conservative justices are typically more pro-business, likely leading to their dissenting opinion in Apple’s favor. But Kavanaugh has indicated that he is willing to read the antitrust precedent differently than his conservative counterparts in order to benefit consumers, the law professor added. • The Apple ruling by the Supreme Court, according to TheHill, stated that : "iPhone users can proceed with a class-action lawsuit against Apple over its control of app sales in a ruling that could threaten the company's exclusive marketplace of third-party software. A group of consumers had sued Apple, claiming that the company's monopoly over its App Store led to inflated app prices. Apple disputed the legality of the suit, arguing the consumers had no standing to sue the company because it merely operated the App Store as an intermediary between users and the developers who make and sell apps....The Supreme Court had ruled in the 1977 case Illinois Brick Co. v. Illinois that only 'direct purchasers' of products have standing to bring antitrust lawsuits. In his decision, Kavanaugh rejected Apple's argument that it was the app developers, and not the company operating the App Store, that sold the programs directly to users. 'Apple’s theory would provide a roadmap for monopolistic retailers to structure transactions with manufacturers or suppliers so as to evade antitrust claims by consumers and thereby thwart effective antitrust enforcement,' Kavanaugh wrote. Leading the dissent for the four conservatives was Justice Neil Gorsuch -- who, like Kavanaugh, is a Trump appointee. Gorsuch argued that if Apple's App Store practices are indeed monopolistic, then it would be the app developers who are harmed and have standing to sue and not the consumers. Gorsuch was joined by Chief Justice John Roberts and Justices Samuel Alito and Clarence Thomas. Apple charges developers a 30% fee for sales through the App Store but allows the developers to set the prices. The plaintiffs argued that the arrangement makes apps on Apple's marketplace more expensive than they would be in a more competitive environment. The justices did not address the merits of the plaintiffs' case against Apple, but the ruling allows the case to advance through a federal district Court. 'In this case, unlike in Illinois Brick, the iPhone owners are not consumers at the bottom of a vertical distribution chain who are attempting to sue manufacturers at the top of the chain,' Kavanaugh wrote. 'There is no intermediary in the distribution chain between Apple and the consumer. The iPhone owners purchase apps directly from the retailer Apple, who is the alleged antitrust violator," he continued. "The iPhone owners pay the alleged overcharge directly to Apple.' " • TheHill wrote : "The decision comes as Apple and other tech companies face growing antitrust scrutiny over the way they operate their platforms. The high Court provided a rare win for antitrust reformers, who see large tech companies as a unique threat to competition and consumers. 'I think it’ll have clear implications for tech companies,' said Sandeep Vaheesan, the legal director at the Open Markets Institute, which filed an amicus brief in the case in support of Pepper. Vaheesan applauded the majority opinion for recognizing that the Sherman Act of 1890, the nation’s first federal antitrust law, gave consumers the right to bring lawsuits against alleged monopolies. Apple, Vaheesan said, is 'really the giant sitting between the two ends of the market.' ” • TheHill also noted that : "The music streaming service Spotify filed an antitrust complaint against Apple in the European Union alleging that the company’s 30% commission on app sales is effectively a tax on a company that is competing with Apple Music, its own streaming service. 'Apple operates a platform that, for over a billion people around the world, is the gateway to the internet,' Spotify CEO Daniel Ek said in a blog post in March. 'Apple is both the owner of the iOS platform and the App Store -- and a competitor to services like Spotify. 'In theory, this is fine,' Ek added. 'But in Apple’s case, they continue to give themselves an unfair advantage at every turn.' ” • Apple in a statement denied that the App Store was a monopoly : “Today's decision means plaintiffs can proceed with their case in District Court. We’re confident we will prevail when the facts are presented and that the App Store is not a monopoly by any metric," the company said in a statement to The Hill. "The vast majority of apps on the App Store are free and Apple gets nothing from them," the company added. "The only instance where Apple shares in revenue is if the developer chooses to sell digital services through the App Store." • American Thinker's Chriss Street wrote on Tuesday : "The Supreme Court has ruled that Apple iPhone users can pursue antitrust lawsuits against its app sales in a case that threatens to devastate Silicon Valley’s business model. Apple tried to halt a lawsuit by four iPhone users who claim damages as the result of Apple’s monopolistic pricing practices that include charging a 30% commission for software developers to sell their products through its App Store, bars developers from selling their apps on other platforms, and requires prices to end in .99 cents. The plaintiffs claim that Apple’s monopoly on the two million apps listed in its store means they are forced to pay higher prices than if the environment for app purchases was competitive. The iPhone plaintiffs claim that Apple is illegally engaged in a highly lucrative 'demanded profit,' also referred to by Silicon Valley as the ‘Apple Tax.’ Apple argued that under a prior Supreme Court antitrust litigation precedent that only app developers are the 'direct purchasers' with 'standing' to bring a damages lawsuit to the Court, versus consumers that are only 'indirect purchasers.'....In what is sure to embolden a tsunami of consumer antitrust litigation against Apple, Facebook, Amazon, and Alphabet’s Google business structure, the Court opinion stated : “If a retailer has engaged in unlawful monopolistic conduct that has caused consumers to pay higher-than-competitive prices, it does not matter how the retailer structured its relationship with an upstream manufacturer or supplier -- whether, for example, the retailer employed a markup or kept a commission.” • Street pointed out that : "To get a sense of how much financial risk Apple faces if the antitrust plaintiffs are successful as their lawsuit moves toward trial, Apple revealed for the first time in its second quarter earnings release on April 30 that its App Store other services had a stunning 62.8% profit margin, almost twice the 35% iPhone sales margin. Despite Apple’s total quarterly sales versus the prior year falling by $3 billion to $58 billion, its stock price hit a four-month high of $208 a share on the wildly profitable App Store and service sales jumping from $9.8 billion to a record $11.5 billion." • AND, stated Street : "With the 30% ’Apple Tax’ commission, typically opposed to 15% for Amazon; 2-15% for eBay; and 3.5% for Etsy, the iPhone antitrust plaintiffs could credibly claim that Apple must reimburse the 116 million iPhone users in the United States $5.75 billion for illegal monopoly profits in the first three months of 2019....Google Play Store charges the same 30% commission as Apple. • • • KAVANAUGH'S LEGAL REASONING. What makes Justice Kavanaugh's decision 'conservative' is the fact that he treated Apple as a monopoly under the Sherman Act. Justice Kavanaugh set out the issue at the beginning of his majority opinion (available at < https://www.supremecourt.gov/opinions/18pdf/17-204_bq7d.pdf > : "Apple Inc. sells iPhone applications, or apps, directly to iPhone owners through its App Store -- the only place where iPhone owners may lawfully buy apps. Most of those apps are created by independent developers under contracts with Apple. Apple charges the developers a $99 annual membership fee, allows them to set the retail price of the apps, and charges a 30% commission on every app sale. Respondents, four iPhone owners, sued Apple, alleging that the company has unlawfully monopolized the aftermarket for iPhone apps. Apple moved to dismiss, arguing that the iPhone owners could not sue because they were not direct purchasers from Apple under Illinois Brick Co. v. Illinois, 431 US 720. The District Court agreed, but the Ninth Circuit reversed, concluding that the iPhone owners were direct purchasers because they purchased apps directly from Apple." Justice Kavanaugh's then stated the majority conclusion : " Held : Under Illinois Brick, the iPhone owners were direct purchasers who may sue Apple for alleged monopolization. Pp. 4–14. (a) This straightforward conclusion follows from the text of the antitrust laws and from this Court’s precedent. Section 4 of the Clayton Act provides that 'any person who shall be injured in his business or property by reason of anything forbidden in the antitrust laws may sue.' 15 USC §15(a). That broad text readily covers consumers who purchase goods or services at higher-than-competitive prices from an allegedly monopolistic retailer. Applying §4, this Court has consistently stated that 'the immediate buyers from the alleged antitrust violators' may maintain a suit against the antitrust violators, Kansas v. UtiliCorp United Inc., 497 US 199, 207, but has ruled that indirect purchasers who are two or more steps removed from the violator in a distribution chain may not sue. Unlike the consumer in Illinois Brick, the iPhone owners here are not consumers at the bottom of a vertical distribution chain who are attempting to sue manufacturers at the top of the chain. The absence of an intermediary in the distribution chain between Apple and the consumer is dispositive. Pp. 4–7. (b) Apple argues that Illinois Brick allows consumers to sue only the party who sets the retail price, whether or not the party sells the good or service directly to the complaining party. But that theory suffers from three main problems. First, it contradicts statutory text and precedent by requiring the Court to rewrite the rationale of Illinois Brick and to gut its longstanding bright-line rule. Any ambiguity in Illinois Brick should be resolved in the direction of the statutory text, which states that 'any person' injured by an antitrust violation may sue to recover damages. Second, Apple’s theory is not persuasive economically or legally. It would draw an arbitrary and unprincipled line among retailers based on their financial arrangements with their manufacturers or suppliers. And it would permit a consumer to sue a monopolistic retailer when the retailer set the retail price by marking up the price it had paid the manufacturer or supplier for the good or service but not when the manufacturer or supplier set the retail price and the retailer took a commission on each sale. Third, Apple’s theory would provide a roadmap for monopolistic retailers to structure transactions with manufacturers or suppliers so as to evade antitrust claims by consumers and thereby thwart effective antitrust enforcement. Pp. 7–11. (c) Contrary to Apple’s argument, the three Illinois Brick rationales for adopting the direct-purchaser rule cut strongly in respondents’ favor. First, Apple posits that allowing only the upstream app developers -- and not the downstream consumers -- to sue Apple would mean more effective antitrust enforcement. But that makes little sense, and it would directly contradict the longstanding goal of effective private enforcement and consumer protection in antitrust cases. Second, Apple warns that calculating the damages in successful consumer antitrust suits against monopolistic retailers might be complicated. But Illinois Brick is not a get-out-of-court-free card for monopolistic retailers to play any time that a damages calculation might be complicated. Third, Apple claims that allowing consumers to sue will result in 'conflicting claims to a common fund -- the amount of the alleged overcharge.' Illinois Brick, 431 U.S, at 737. But this is not a case where multiple parties at different levels of a distribution chain are trying to recover the same passed-through overcharge initially levied by the manufacturer at the top of the chain, cf. id., at 726–727. Pp. 11–14." • Justice Kavanaugh and the majority then affirmed the 9th Circuit Court's opinion (846 F. 3d 313), that found that the iPhone owners were direct purchasers because they purchased apps directly from Apple. The Supreme Court did not decide the merits of the iPhone owners' case, but said "Under Illinois Brick, the iPhone owners were direct purchasers who may sue Apple for alleged monopolization," and remanded the case for trial on the facts : "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.' 2A Areeda &Hovenkamp ¶345, at 179. 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. We affirm the judgment of the US Court of Appeals for the Ninth Circuit. It is so ordered." • As Justice Kavanaugh states in his majority opinion : "The sole question presented at this early stage of the case is whether these consumers are proper plaintiffs for this kind of antitrust suit -- in particular...whether the consumers were 'direct purchasers' from Apple. Illinois Brick, 431 U. S., at 745–746. It is undisputed that the iPhone owners bought the apps directly from Apple. Therefore, under Illinois Brick, the iPhone owners were direct purchasers who may sue Apple for alleged monopolization." NOTE that Justice Kavanaugh refers first and foremost to the TEXT of the Sherman Act statute : "That straightforward conclusion follows from the text of the antitrust laws and from our precedents. First is text: Section 2 of the Sherman Act makes it unlawful for any person to 'monopolize, or attempt tomonopolize, or combine or conspire with any other person or persons, to monopolize any part of the trade or commerce among the several States, or with foreign nations.' 26 Stat. 209, 15 U. S. C. §2. Section 4 of the Clayton Act in turn provides that 'any person who shall be injured in his business or property by reason of anything forbidden in the antitrust laws may sue...the defendant...and shall recover threefold the damages by him sustained, and the cost of suit, including a reasonable attorney’s fee.'....The broad text of §4 -- 'any person' who has been 'injured' by an antitrust violator may sue -- readily covers consumers who purchase goods or services at higher-than-competitive prices from an allegedly monopolistic retailer. Second is PRECEDENT : Applying §4, we have consistently stated that 'the immediate buyers from the alleged antitrust violators' may maintain a suit against the antitrust violators....At the same time, incorporating principles of proximate cause into §4, we have ruled that indirect purchasers who are two or more steps removed from the violator in a distribution chain may not sue. Our decision in Illinois Brick established a bright-line rule that authorizes suits by direct purchasers but bars suits by indirect purchasers." Justice Kavanaugh then explains why Apple's argument is wrong : "Here, Apple argues that the app developers, not Apple, set the retail price charged to consumers, which according to Apple means that the consumers may not sue Apple.We see three main problems with Apple’s 'who sets the price' theory. First, Apple’s theory contradicts statutory text and precedent. As we explained above, the text of §4 broadly affords injured parties a right to sue under the antitrust laws. And our precedent in Illinois Brick established a bright-line rule where direct purchasers such as the consumers here may sue antitrust violators from whom they purchased a good or service. Illinois Brick, as we read the opinion, was not based on an economic theory about who set the price. Rather, Illinois Brick sought to ensure an effective and efficient litigation scheme in antitrust cases. To do so, the Court drew a bright line that allowed direct purchasers to sue but barred indirect purchasers from suing. When there is no intermediary between the purchaser and the antitrust violator, the purchaser may sue. The Illinois Brick bright-line rule is grounded on the 'belief that simplified administration improves antitrust enforcement.'....To the extent that Illinois Brick leaves any ambiguity about whether a direct purchaser may sue an antitrust violator, we should resolve that ambiguity in the direction of the statutory text. And under the text, direct purchasers from monopolistic retailers are proper plaintiffs to sue those retailers." DO WE hear the "Text" axiom of Justice SCALIA echoing here? We certainly do. • Justice Kavanaugh expands his explanation : "Apple’s line-drawing does not make a lot of sense, other than as a way to gerrymander Apple out of this and similar lawsuits. In particular, we fail to see why the form of the upstream arrangement between the manufacturer or supplier and the retailer should determine whether a monopolistic retailer can be sued by a downstream consumer who has purchased a good or service directly from the retailer and has paid a higher-than-competitive price because of the retailer’s unlawful monopolistic conduct. As the Court of Appeals aptly stated, 'the distinction between a markup and a commission is immaterial.' 846 F. 3d, at 324....If a retailer has engaged in unlawful monopolistic conduct that has caused consumers to pay higher-than-competitive prices, it does not matter how the retailer structured its relationship with an upstream manufacturer or supplier -- whether, for example, the retailer employed a markup or kept a commission. To be sure, if the monopolistic retailer’s conduct has not caused the consumer to pay a higher-than-competitive price, then the plaintiff ’s damages will be zero. Here, for example, if the competitive commission rate were 10 percent rather than 30 percent but Apple could prove that app developers in a 10 percent commission system would always set a higher price such that consumers would pay the same retail price regardless of whether Apple’s commission was 10 percent or 30 percent, then the consumers’ damages would presumably be zero. But we cannot assume in all cases—as Apple would necessarily have us do -- that a monopolistic retailer who keeps a commission does not ever cause the consumer to pay a higher-than-competitive price. We find no persuasive legal or economic basis for such a blanket assertion. In short, we do not understand the relevance of the upstream market structure in deciding whether a downstream consumer may sue a monopolistic retailer. Apple’s rule would elevate form (what is the precise arrangement between manufacturers or suppliers and retailers?) over substance (is the consumer paying a higher price because of the monopolistic retailer’s actions?). If the retailer’s unlawful monopolistic conduct caused a consumer to pay the retailer a higher-than-competitive price, the consumer is entitled to sue the retailer under the antitrust laws." • In what is being described in the media as a kind of "dueling banjos" argument between Justices Kavanaugh and Gorsuch, who wrote the dissenting opinion, Justice Gorsuch plays his banjo in a rather out-of-tune fashion. Justice Gorsuch sets out the plaintiffs' argument as they themselves did at the District Court : "Plaintiffs can be injured only if the developers are able and choose to pass on the overcharge to them in the form of higher app prices that the developers alone control. Plaintiffs admitted as much in the district court, where they described their theory of injury this way : '[I]f Apple tells the developer...we’re going to take this 30 percent commission...what’s the developer going to do? The developer is going to increase its price to cover Apple’s...demanded profit.” LET'S JUST STOP HERE and say that Justice Gorsuch has proven the case for the Plaintiffs. Apple's demand of a 30% profit from selling the developers apps causes the app developers to raise their prices to pay the higher than usual commission to Apple. • BUT, Justice Gorsuch insists on continuing to play his out-of-tune banjo : "Seizing on Illinois Brick’s use of the shorthand phrase 'direct purchasers' to describe the parties immediately injured by the monopoly overcharge in that case, the Court (re)characterizes Illinois Brick as a rule that anyone who purchases goods directly from an alleged antitrust violator can sue, while anyone who doesn’t, can’t. Under this revisionist version of Illinois Brick, the dispositive question becomes whether an 'intermediary in the distribution chain' stands between the plaintiff and the defendant. Ante, at 6. And because the plaintiff app purchasers in this case happen to have purchased apps directly from Apple, the Court reasons, they may sue." CONSIDER THIS -- as Justice Kavanaugh points out, Section 2 of the Sherman Act makes it unlawful for any person to "monopolize, or attempt to monopolize, or combine or conspire with any other person or persons, to monopolize any part of the trade or commerce..." AND Section 4 of the Clayton Act provides that "any person who shall be injured in his business or property by reason of anything forbidden in the antitrust laws may sue...the defendant..." As Justice Kavanaugh states : "the broad text of §4 -- 'any person' who has been 'injured' by an antitrust violator may sue -- readily covers consumers who purchase goods or services at higher-than-competitive prices from an allegedly monopolistic retailer." • There cannot be a clearer example of "consumers" than the iPhone Plaintiffs who bought apps directly from Apple and were "injured" because they had to pay a higher-than-competitive 30% commission hidden in the price for the privilege of buying the iPhone apps. • Justice Gorsuch and the conservative minority are wrong and Justice Kavanaugh and the majority are right, as I see it. We may ask -- Did Kavanaugh lead the liberal Court members to the Scalia-type, almost populist, conclusion of the majority opinion? Were the liberal Justices simply looking for a way to "get" "big business" Apple by using the Plaintiffs' argument that they should be able to sue Apple because they bought directly from Apple's App Store? Or, did Kavanaugh simply apply the antitrust laws as they were written and the liberal justices agreed because Kavanaugh's legal reasoning helped them protect consumers? As Justice Kavanaugh stated, that is exactly what the antitrust laws are meant to do -- protect consumers. • American Thinker's Chriss Street pointed out that if the antitrust plaintiffs are successful as their lawsuit moves toward trial, Apple will have at risk its App Store second quarter 2019 "stunning 62.8% profit margin," almost twice Apple's 35% iPhone sales margin. Street explained why the Plaintiffs are suing. They are paying 30% ’Apple Tax’ commission, compared to "15% for Amazon; 2-15% for eBay; and 3.5% for Etsy." The Plaintiffs could credibly claim that Apple must "reimburse the 116 million iPhone users in the United States $5.75 billion for illegal monopoly profits in the first three months of 2019." Street says that "Google Play Store charges the same 30% commission as Apple." Is Google the next monopolist to fall, if the iPhone Plaintiffs are successful? • Patriot Post on Wednesday published an article by Louis DeBroux that has something to say about the Kavanaugh majority opinion in the iPhone case -- the 'something' is all about stare decisis -- the legal Latin that means 'stand by what has been decided.' DeBroux says : "With a theoretical 5-4 majority on the Supreme Court, conservatives can enjoy the spectacle of 'progressives' suddenly discovering their (selective) reverence for legal precedent. In a 5-4 ruling on Monday, the High Court overturned a 40-year-old precedent regarding sovereign immunity for states -- one that shields them from private lawsuits initiated in the courts of other states. In writing for the majority, Justice Clarence Thomas, the Court’s conservative anchor, stated that the Court’s finding in the overturned Nevada v. Hall 'is contrary to our constitutional design and the understanding of sovereign immunity shared by the States that ratified the Constitution.' Importantly, he concluded, 'Stare decisis does not compel continued adherence to this erroneous precedent.' Justice Steven Breyer, writing for the minority, warned, '[It’s] dangerous to overrule a decision only because five Members of a later Court come to agree with earlier dissenters on a difficult legal question....Today’s decision can only cause one to wonder which cases the Court will overrule next.' The expression of such fears is brazenly hypocritical. One cannot both advocate for the philosophy of a 'living Constitution' -- where the Constitution means whatever five black-robed oligarchs say it means -- and demand fealty to stare decisis...The judicial despots of the Supreme Court have a long and inglorious history of ignoring the Constitution as written in favor of manufacturing new 'rights' found nowhere but in the 'emanations and penumbras' of their minds....After all, 'progressives' still cheer and revere the Court’s ruling in Roe v. Wade, which enshrined into law the murderous sacrament of abortion. Roe was a significant departure from long-held precedent, and even many left-leaning constitutional scholars concede that Roe’s reasoning was deeply flawed despite their personal support for the outcome....And leftists literally celebrated in the streets when, in Obergefell v. Hodges, the Court overturned centuries’ worth of laws establishing marriage as between one man and one woman. In doing so, the Court rendered marriage nothing more than a governmental validation of romantic relationships, as opposed to its historical purpose of legally binding fathers to mothers and children." • DeBroux highlights the "hypocrisy of the Left" in relation to the Bill of Rights...."continually attacking our rights to free speech (Citizens United), to keep and bear arms (DC v. Heller -- which former Justice John Paul Stevens still argues is 'unquestionably the most clearly incorrect decision' of his time on the Court -- and McDonald v. Chicago), and religious freedoms (Burwell v. Hobby Lobby, Masterpiece Cakeshop v. Colorado Civil Rights Commission, etc.)." Yet, DeBroux wobbles when he takes a passing shot at Justice Kavanaugh for ignoring stare decisis in the iPhone case, calling it judicial "activism," undoubtedly because DeBroux disagrees with Justice Kavanaugh's reasoning : "Unfortunately, even Republican-appointed and ostensibly conservative judges aren’t immune from the enticing lure of judicial activism and the desire to be lauded by the DC establishment. That is rather like saying that the "Trump Court" Justices must decide every case by first looking at what the Swamp supports and then deciding the case by taking the opposite view. That is truly not only a "living" but a tyrannically "living" Constitution. • • • DEAR READERS, we will see more attacks on Justice Kavanaugh for his pro-consumer, ostensibly anti-business, opinion because conservatives tend to support business, even when it interferes with the constitutional freedoms of individuals. That is precisely where many conservatives part company with President Trump, who favors consumers -- that is, individual Americans and the Constitution -- even when business has to take the hit. In a "free" market, the price for a commodity, or service is determined by the equilibrium of Demand and Supply. Libertarians and conservatives theoretically favor an economy based on economic freedom, property rights, free markets and free trade, which they consider to be among the most important kinds of freedom. The US Constitution protects those freedoms, and when the late 19th century growth of businesses overwhelmed any individual's ability to bargain with them, antitrust laws, beginning with the Sherman Act that deals with monopolies, were enacted. The antitrust laws were enforced for several generations and did the job of monitoring and halting business practices that treated individuals and small businesses unfairly. Antitrust enforcement has fallen away in the past generation, undoubtedly because of its success in creating a more fair playing field for consumers. But, today, we see huge, largely unregulated, high-tech businesses not only gouging consumers, but also telling them what they can and cannot say online. Justice Kavanaugh has taken the first major step in re-establishing consumers as the central focus of antitrust laws. His decision will surely be cited as legal actions are brought by aggrieved consumers, and government regulation of these high-tech 'monopolies' is demanded. For, what is a greater squelching of constitutional freedom, for example, than to allow businesses that monopolistically control the largely unregulated Internet to tell individual Internet users what opinions and beliefs they may express and share with other users of the Internet?? • Justice Kavanaugh did not "break" with the "Trump Court." He is leading it.