Limbaugh Proposes New Theory as to Why Kavanaugh Sided with Liberal Judges on SCOTUS Rulings
Rush Limbaugh is getting awfully nervous about Supreme Court Justice Brett Kavanaugh — and Rush thinks Christine Blasey Ford may be to blame.
Kavanaugh was the swing vote in a case that allowed iPhone users to sue Apple over the fees charged to developers selling apps on its App Store, according to CNBC.
The junior justice sided with the court’s four liberals to deal the tech giant a 5-4 setback, ruling that even though users weren’t the ones paying the 30 percent commission, they were still eligible to sue, claiming that the fee was an unfair use of monopoly power.
Kavanaugh authored the opinion, delivered Monday, which stated that Apple’s position on standing was more self-serving than it was legal.
“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,” the opinion read.
It’s worth noting that this wasn’t an entirely unexpected decision.
Some members of the court had seemed skeptical of Apple’s position during November arguments, according to CNBC. However, this is the second time Kavanaugh has consternated conservatives.
In December, both he and Chief Justice John Roberts refused to vote to review two cases involving injunctions against states that wanted to cut Planned Parenthood’s Medicaid funding. Justices Samuel Alito, Neil Gorsuch and Clarence Thomas voted to hear the cases, but it requires four votes for a case to come before the full court.
Limbaugh said he thinks the two cases prove that the accusations of sexual abuse against Kavanaugh on the eve of his confirmation in the fall, and the storm of publicity surrounding the attendant hearings, may have played a part in some Kavanaugh decisions.
“The real question is, ‘What’s Kavanaugh doing here?’” Limbaugh asked rhetorically on his Monday show.
“You go back to the Federalist Society, Kavanaugh was the best of all. Better than Gorsuch, more conservative, more pure this, that, and the other thing. This is the second or third time now that he has aligned with the leftists.
“And I’ll tell you what I think, I think all that Blasey Ford stuff worked! I think it’s classic!” he said.
“I’m wild guessing; I don’t know. I’ve never met Kavanaugh, don’t really — talked to anybody about this. I’m wild guessing. But I — this just strikes me as so typical. OK. I’m gonna show them they were wrong. I’m gonna show them that they were wrong about [me]. I’m gonna show ’em I can be fair and the way you show a liberal that you’re fair is agree with them.”
Limbaugh said it wasn’t an issue of whether Apple was a monopoly but a question of standing.
“The people suing claim that the prices are high because of all this. A district court decision, lower court decision ‘had said that iPhone users did not have standing to bring the antitrust claim because the developers are the ones selling the apps, not Apple,'” Limbaugh said.
“So a developer writes an app and then goes to the App Store for the approval process. Apple approves the app (if it gets the approval) and it’s up for sale. At that point, it’s up to the developer to market it, to let people know it exists, unless Apple thinks so much of the app that it highlights it itself — which it does.
“This was a case about standing. Do these iPhone and iPad owners have standing to sue Apple? Previously, Supreme Court precedent said, ‘No, they’re too far removed. Apple is too far removed from the ultimate sales process,'” Limbaugh said.
“Kavanaugh agreed with the libs on the court. So now the case will be adjudicated. Now these people… Nothing changed process yet. It just means these people can go ahead and sue Apple. It could force Apple to either cut their commission from 30 percent, or if Apple is found liable and guilty, then the judge could triple the compensation to consumers.”
However, while siding with the liberals on a question of standing may be an unusual position for Kavanaugh to take, it wouldn’t have raised an eyebrow were it not for the Planned Parenthood cases.
So this brings us to the inevitable question: Is it affecting his jurisprudence?
The logical answer would be maybe. For starters, it’s early in Kavanaugh’s tenure on the nation’s highest bench, and it wouldn’t be unusual for a conservative justice with all of the right credentials to end up being a bit of a letdown. Remember President Eisenhower’s famous line about whether he had any disappointments: “Yes, two, and they are both sitting on the Supreme Court.”
And then, maybe it’s too early to sound the alarm. Also on Monday, Kavanaugh voted with the court’s conservatives on a tax residency case in which, according to Forbes, they found that one state can’t be sued by a private party in another state’s court, at least not without the first state’s consent.
If that doesn’t all sound terribly exciting, consider the fact that the conservative majority was ruling against established judicial precedent in favor of a constitutional one.
If you still don’t get it, let these hyperventilating headlines spell it out for you: “The Supreme Court Just Outlined How It Might Get Rid of Abortion Rights”; “The Supreme Court’s Liberals Are Warning Us That Roe v. Wade Is in Mortal Danger”; “Supreme Court’s conservatives overturn precedent as liberals ask ‘which cases the court will overrule next.'” (GQ, Slate, Washington Post.)
In short, Monday was (pardon the pun) a split verdict.
If you want to believe that Kavanaugh has turned liberal because of the Christine Blasey Ford spectacle before the Senate Judiciary Committee, there’s evidence for that. After all, he was supposed to be more conservative than Gorsuch, even.
If you want to stay confident he was the right man for the court, there’s reason for that too.
It might feel like an awful situation to not be sure of Kavanaugh after that pitched battle over his confirmation, but (and I’m so, so sorry for the punnery) the jury’s still out.
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