Kavanaugh breaks with conservative Trump court in Apple decision
Supreme Court Justice Brett KavanaughBrett Michael KavanaughMichael Bennet must find a way to stand out in the crowd Michael Bennet a welcome addition to the 2020 Democratic field Suspense builds for Supreme Court moves on abortion, LGBT cases MORE 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.
“I’ve been skeptical of Kavanaugh as a pick since Trump named him. This is another reason why,” conservative commentator Ben Shapiro tweeted in response to the Apple ruling.
Fox News legal analyst Andrew NapolitanoAndrew Peter NapolitanoFox’s Napolitano slams Barr memo: ‘It was dumb and insulting’ Fox’s Napolitano dismisses suggestion US is in a ‘constitutional crisis’ Fox News legal analyst says Barr ‘probably misled’ lawmakers in prior testimony on Mueller report MORE also said during an appearance on the network 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,” the judge said. “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.”
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Kavanaugh has sided with the liberals in a handful of other cases since he joined the court last year after a controversial confirmation hearing in which his appointment was nearly submarined by allegations of sexual misconduct from decades ago, when he was a high school student.
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 adviser from being in the room during the moment of death. Kavanaugh wrote the concurring opinion for the order.
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.
The times when Kavanaugh has broken with conservatives, however, are the exceptions. In his short time on the court, Kavanaugh has consistently ruled as part of the court’s conservative majority.
He showed that again on Monday when he sided with the conservative justices in a 5-4 decision reversing a prior precedent set by the high court. Liberal Justice Stephen Breyer, who authored the dissenting opinion, expressed dismay with the ruling.
“Today’s decision can only cause one to wonder which cases the court will overrule next,” wrote Breyer in a remark many saw as an allusion to a possible future decision on abortion rights.
Geoffrey Stone, a law professor at the University of Chicago, 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 said 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 D.C. 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.
Court watchers are sure to keep a close eye on the newest justice for a potential repeat performance as the Supreme Court issues some of its highest-profile opinions of its term in the coming weeks. The court is set to issue its next round of opinions next Monday.