It isn't really. It's just the standard partisan split, albeit with one guy "crossing the floor". Such crossing is common but since most of the media is incapable of understanding anything but partisan point scoring, they portray the Justices as partisan hacks, which they are not.
Heck, they aren't even that good at tracking point-scores, since the most common score at SC United (states) is 9-0.
https://en.wikipedia.org/wiki/2018_term_opinions_of_the_Supr...
https://www.scotusblog.com/2019/05/opinion-analysis-divided-...
Basically in order from left to right numbered 1-9 the majority on this case were 1-4 and 6. So it's only one step away from being a fully partisan split.
>"they portray the Justices as partisan hacks"
I leave it up to others to decide whether scoring each justice on a left-to-right continuum is any more nuanced than this.
Under current US law multiple parties may not sue for the same damage. But at this point of time it is not decided whether the damages sustained by consumers in this lawsuit would be the same damages that app developers could sue for. It is entirely possible that Apple has swindled BOTH.
Either customers have their prices artificially increased, at which point app developers don't have damages as they're getting the money from customers, or else app developers are keeping prices low and taking the damage themselves, at which point customers aren't harmed.
Let's say you burn down a concert hall _with the intention to prevent the concert_. Then you have two different kinds of damages:
- Destroyed Concert Hall => The owner of the hall suing you because you destroyed their property.
- Prevented Concert => The visitors (trying to) sue you for "preventing" the concert.
Sure, in case of the concert I would be surprised if the second case goes anywhere, but then the situation wrt. the app store is way more complex.
It's just like a sales tax, who does it come from, the consumer or the retailer? It really doesn't matter, the effect is the same.
The only problem is if it is accounted for twice. If it adds $10 to a transaction, you can't say both the consumer and developer are each harmed by $10. Better to say each are harmed by $5.
A monopoly has structural implications which could disadvantage both customers and developers in ways that go beyond paying x% Apple Tax on each sale.
For example - opportunity costs for both developers and customers, lock-in costs, costs to competitors who might have been able to operate a related market, specific losses for specific developers based on arbitrary, capricious, or self-serving app store exclusions, and so on.
None of this has been proven yet, all of it is debatable, and it could all be included in potential arguments.
This is bad news for Apple - not just because any judgement could be worth tens of billions, but because of potential bad PR and brand damage, which may happen however the final judgement goes. And also because of the distraction from more constructive goals.
"Market definition is least useful when market shares would not be strongly probative of market power or anticompetitive effect, while direct evidence as to market power or anticompetitive effect is available and convincing." Apple's control of the App Store has a direct anticompetitive effect in the secondary market for iOS apps. This is pretty clear from the fact that Apple explicitly prohibits some apps that compete with its own. The interesting question is whether the plaintiffs will succeed in proving that Apple's conduct is illegal, under the prevailing interpretation of the US antitrust laws.
[1]: Market definition: an analytical overview (2007). https://digitalcommons.wcl.american.edu/cgi/viewcontent.cgi?...
I wouldn't say UPPAbaby strollers are their own market, but I would say UPPAbaby stroller accessories are their own market, at least if they have and act on a legal way to prevent all others from making and selling accessories that interact with their strollers.
Then again higher prices usually leads to less demand, hurting the devs even more (who will have to either eat the losses, or increase prices even more; goto 1). Apple made it so, so it's hurting the developers.
So Apple is hurting both, customers and developers.
But are app customers also Apple customers? Well, customers give a ton of money to Apple directly. It is comparable to a brick and mortar store where the customer does not actually pay the store, but the landlord of real estate in which the store is housed, who then keeps 30% and kicks over the rest to the actual store owner. And then the landlord claims it has no relationship whatsoever with those customers. Sounds ridiculous to me. Imagine credit card companies said they will no longer do any fraud prevention let alone fraud compensation because because all the money exchanged it between the customer and the vendor (or fraudster).
But it even goes further than this: said hypothetical brick and mortar store is in a company town, so all estate in the town is owned by the same landlord (the company in "company town"). Neither the store owner nor the customers have alternatives to do business in that town without the landlord's involvement. "But you can always move" says the landlord (i.e buy a non-iPhone as a customers and switch to another platform such as Android as a developer)...
Now the question is whether the court will find Apple is abusing their monopoly on "iOS App Stores" or if they are well within their right, because they do not actually have a monopoly as there is more than just iPhones and their App Store in the market.
Under previous precedent (Illinois Brick), only app developers would have standing to sue, and that is what apple argued should happen here.
"liable for the monopolistic effects" != standing. Standing is literally about "who has the right to sue at all".
Not whether they are liable or not. That comes later.
It's a very healthy precedent for app stores, regardless.
There is literally nothing else for these folks to strive for except being well regarded in the history books, so they can finally do what they regard as the best thing to do.
Perhaps in the "old" days when Justices had the feelings you're attributing it might be true but now in the current political situation ideologues are who are sought out to appoint and they care only they're well regarded by their own political persuasion.
Why would they care about that? They already have the job for life. They don’t need to please their audience any more. They’re free to act on principle.
And beyond that, there's a more fundamental issue: people like this are chosen for these roles because of their fervent, polarized political beliefs. Their principles, if they have any, are either aligned with or overcome by the politics. Their willingness to listen to reason and step outside their bubble is limited, unless doing so lines up with their politics.
> Are Supreme Court justices swayed by the political environment that surrounds them? Most people think "yes," and they point to the influence of the general public and the other branches of government on the Court. It is not that simple, however.
> As the eminent law and politics scholars Neal Devins and Lawrence Baum show in The Company They Keep, justices today are reacting far more to subtle social forces in their own elite legal world than to pressure from the other branches of government or mass public opinion. In particular, the authors draw from social psychology research to show why Justices are apt to follow the lead of the elite social networks that they are a part of.
I certainly hope current SCOTUS justices have a solid grasp of history and what happened to the last SCOTUS justice who acted in a manner you're suggesting. And this is an institution that (also, as history would have it) does a pretty good job giving a wide berth to precedent.
Sometimes, having an old guy say "whoa, slow down! That's a bad idea" is a good idea.
I'd be surprised to discover any alternatives to this constraint.
Or I don't know.. money, bribes, favoritism?
I think that the terms don't actually matter much. The real problem with SCOTUS is that it represents extreme concentration of political power in our system that doesn't have any direct checks on it. Then you have stare decisis, which makes it so much harder to overturn decisions - so even indirect checks are limited. That's why its lack of accountability (e.g. term limits) is such a big problem. It's also why it was inevitable for it to become more partisan over time - having a partisan majority on the court is basically the equivalent of having nukes, and once one side starts moving in that direction, the other will inevitably follow. And now we're at the point where many people vote for president solely on the basis of what kind of judges they will appoint - and it's not even an irrational approach.
So I think that it's better to make the court less powerful, such that those appointments are not quite so important. One particular idea that I had is to abandon simple majorities as the way to decide matters on the court, and run it more like a jury - basically, the only way to declare something to be definitely unconstitutional, or definitely constitutional, should be by unanimous decision, or perhaps a strong supermajority (say 7 out of 9?). If a panel of people who are specifically chosen as legal experts cannot agree what the Constitution means with respect to something, I think the most sensible interpretation is that it's ambiguous - but then going with a simple majority would be very wrong.
Instead, if the judges cannot agree, this should automatically trigger a constitutional amendment process. Basically, have them all write opinions explaining why they cannot agree with their opponents on the court, and what changes to the Constitution would be necessary before they can agree. Submit all those changes as proposals for ratification, using the normal process, except that only one can be ratified, and that automatically rejects the other changes. If one of the amendments is ratified, that resolves the issue unambiguously and with an explicit rule for future cases like that. If none get ratified, then the lower court decision stands, but it does not set a precedent - the constitutional question remains open, and can be challenged again.
I would expect this to result in more unanimous or supermajority decisions with less extreme and more narrow effects, because the judges would be more likely to try to hammer out a compromise to cross the threshold.
It's unfortunate but having a stalemate is the best course to eliminate rash changes to government when there is a lot of divisiveness.
The big difficult, however, is how to make sure that a hostile senate wouldn't just block all nominations (which is the new norm). Some people like Calabresi have suggested that the president and everyone in the senate would be denied all compensation (IIRC even from private parties) until the seat is filled. I don't think that's a workable idea though.
It's an appointment, so they would only have to convince the president. Or you can prevent reappointment at all.
Most presidents are reelected to two terms, and so if judicial terms were offset from Presidential terms by a year, they'd have:
At 0 years, 0 justices they appointed.
At 1 year, 3 justices.
At 3 years, 6 justices.
At 5-8 years (and up until 1 year into the next term), all 9 justices.
So most President get to completely stack the court, the effects just don't last as long—the judiciary becomes another weathervane political branch of government, because the two of those was too few.
(And I don't even want to consider the consequences of all those short time justices looking to their post-Court career while sitting on the bench.)
That's how the Senate used to work, with state legislatures "electing" the senators.
That was replaced a hundred years ago with direct election of senators.
I'm sure plenty of people who voted Hitler thought they were in the right side of history until they suddenly weren't. That's the unfortunate part of politics, you have to build a system around not trusting people.
It does have to be justified based on existing law and this is important. But often, existing law only talks about broad principles or is contradictory, and judges are expected to fill in the details. In the case of the U.S. Constitution, these "details" can be really huge gaps.
I didn't mean "what's right" as in "what I feel is right", but in's what the law says. The policies are for the politicians, trying to merge the judiciary and the legislative doesn't sound like such a great plan to me.
If you don't care about what other people want and how the law affects people, then there is no morality or justice and it might as well be a coin flip.
It's strange that the idea that judges shouldn't decide by (future) popularity gets downvoted. At times I don't understand this community at all. Is that a "I believe that my opinion will rule supreme in 20 years, so judges should submit to it now and just ignore the constitution"-thing?
This is what an appeals court justice does and their check and balance role on the other two branches of govt.
Not so! There are many decisions by Kavanaugh that "liberals" (it's weird to me that they're called than in the U.S.) will have trouble predicting the opinions of conservatives [0].
“Who was best able to pretend to be the other?
The results were clear and consistent. Moderates and conservatives were most accurate in their predictions, whether they were pretending to be liberals or conservatives. Liberals were the least accurate, especially those who described themselves as "very liberal." The biggest errors in the whole study came when liberals answered the care and fairness questions while pretending to be conservatives. When faced with statements such as "one of the worst things a person could do is hurt a defenseless animal" or "justice is the most important requirement for a society," liberals assumed that conservatives would disagree.”
And they're probably even worse at this now than they were in 2012, if the inanity of the mainstream moral caricatures is anything to go by.
His findings have also never been validated, even by other conservative scholars, and he refuses to provide the data from this study. (Also, the study was a survey given to people attending the Reagan Library during the work week, so a highly self-selective bunch...)
(Jonathan Haidt was a hero of one of my professors...until the scholarly issues with Haidt's research came to light.)
[1] https://www.politico.com/story/2018/12/10/supreme-court-plan...
Last year, every Supreme Court Justice agreed with every other justice most of the time, except Sotomayor/Alito (they agreed 49% of the time)[0].
That doesn't mean the disagreements aren't important.
What you say may be a true statement, but it also selectively ignores the sexual assault accusations made by three women he has known. Whether or not you believe the accusations are true or false doesn't change the fact that they factor into his expectations as a judge.
[1] https://www.nytimes.com/2018/07/18/opinion/abortion-kavanaug...
The idea of Federalist Society “ideological purity” is also pretty amusing, considering that there is a large Never Trump contingency within the organization: https://www.huffpost.com/entry/george-conway-starts-anti-tru.... I’d wager there are a lot more pro-choice Federalist Society members than pro-life members of the American Constitution Society.
Whether or not they actually do this is another question, but the incentive is still there even with a lifetime appointment.
They may have more conservative or liberal tendencies, but to think that that all Justices will vote the way that people want to pigeonhole them into is ridiculous.
I suppose it proves they aren't 100% (not 99.9999%....100%) bound to always make decisions precisely aligned with a political party.
But no reasonable person suggested that.
It’s hard to swallow, but we need a third constitutional convention because this stuff is wrecked in the us.
What is this based on? Everything I've read up to today, even ignoring the confirmation events, has indicated that Kavanaugh is not a desirable choice for those on the left side of the political spectrum.
https://fivethirtyeight.com/features/how-conservative-is-bre...
As of last week, Rasmussen (a conservative polling firm) was sampling support for impeachment of Kavanaugh.
It's possible that Kavanaugh is completely ignoring the topic, and has dedicated himself to the high-minded topic of jurisprudence. It's also possible that he is aware of such polling and is building support should the winds change.
https://en.wikipedia.org/wiki/Brett_Kavanaugh_Supreme_Court_...
No he wasn’t. He was considered a partisan hack at best and was less popular than most previously confirmed justices.
He did get approval from the Amy Chuas and Neal Katyals and Akhil Amars but that says more about elite Ivy League in-groups than anything else.
[1] https://www.washingtonpost.com/opinions/we-were-brett-kavana...
SCOTUS holds that Apple can be sued for alleged monopoly of the Apple App Store. It does not decide whether or not this alleged monopoly exist.
Interestingly, it's a 5-4 decision, with Kavanaugh writing the decision, joined by the 4 liberal justices. Probably the most unexpected alignment of the current term!