Justice Clarence Thomas, on the matter of judicial precedent, as quoted by Myron Magnet in Thursday’s Wall Street Journal:
“Stare decisis is not an inexorable command,” Justice Thomas observes in [Franchise Tax Board v] Hyatt. He has said elsewhere: “I think that the Constitution itself, the written document, is the ultimate stare decisis.”
What he said.
Apple v Pepper is an antitrust case in which the plaintiffs argue that Apple’s requirement that all iPhone apps must be sold through Apple’s app store is a monopoly that Apple abuses by charging excessive commissions on app sales.
The Wall Street Journal has its editorial knickers in a twist because Justice Brett Kavanaugh, writing for the majority, rejected Apple’s plaint that the case be dismissed. The result is that the case continues in trial court. Yet the editors are upset that Kavanaugh’s ruling “gutted four decades of precedent,” as though precedent cannot be erroneous and so must be unchanging for the ages.
Justice Kavanaugh [opined] based on the text of the Clayton Act, but the Court has long interpreted antitrust statutes alongside common law principles of proximate causation.
How shocking that a textualist ruled on the basis of the text and disagreed with judges imposing personal views of “common law principles” on what a law actually says.
Contrary to the editors’ thrust, all that has happened at this point is that the suit is allowed to proceed in a lower court. This actually represents a golden opportunity to apply the text of antitrust law to the likes of Alphabet, Facebook, Twitter, Apple, et al., which have capabilities of which Clayton could not conceive. In what ways might tech giants exercise monopoly power (legal) or abuse it (illegal)?
At bottom, as the case itself makes it way to the Supremes, it would be a golden opportunity for that Court to tell the Congress to do its political job. Bleatings about “common law” and judges’ perceived principles inhering in “common law” notwithstanding, everything that Clayton means is contained in the text of that law. Everything that that century-old Congress intended when it enacted that law is contained in the text of that law and nowhere else. If the law needs updating to address today’s digitally-oriented monopolies, that’s the political task of today’s Congress, not the judicial task of any era’s Justices.
The Supreme Court has heard the oral arguments for Iancu v Brunetti, a case I wrote about a bit ago. Hadley Arkes’ op-ed in The Wall Street Journal shed additional light on the matter, which centers on whether Iancu’s business can trademark the name of his business, Friends U Can’t Trust, with its acronym stand-in.
Certain words are fixed in the language with the moral functions of “commending” and “condemning,” and some of them have a special edge….
You bet.
However, confusing F**T with the specially edged F**K can only be done by those with potty-mouthed minds. Ordinary people, people with the barest modicum of decorum, are not so easily misled, whether they simply choose not to see the worst in everything they encounter, or they’re mildly amused by the obvious jape.
Chief Justice John Roberts did raise a significant point:
…advertisements will be posted in malls where children can see them. Mr Brunetti is appealing to rebellious young men, “but that’s not the only audience he reaches….”
However, this isn’t the risk that Roberts thought he saw. This is an excellent opportunity to teach those children how to recognize critical differences and to not be misled by artificial similarities. And to teach them how not to be easily offended or cavalierly crude.
Putting potty-mouthed minds into the PTO to effect government censorship according to their base criteria should be unacceptable.
John Yoo, who was a Deputy Assistant Attorney General in the Department of Justice Office of Legal Counsel, has reminded us of the authority of the AG vis-à-vis immigration judges.
He [the AG] has the power to overrule immigration judges. Immigration judges have been making mistakes….
Aside from the immigration judges’ error rate, it’s really quite clear that the AG can overrule them. Not only are immigration judges not Article III judges, they’re employees of the Department of Justice—they work for the AG. Beyond that, they’re not even judges; they’re Special Inquiry Officers.
The Supreme Court has taken up the case of Iancu v Brunetti and heard oral arguments Monday. Erik Brunetti wanted a copyright on the label for a clothing line of his that he’d named FUCT, an acronym for Friends U Can’t Trust. Iancu is Andrei Iancu, who is duel-hatted as Under Secretary of Commerce for Intellectual Property and Director of the United States Patent and Trademark Office. Wearing that second hat, Iancu and his fellow USPTO bureaucrats said they were scandalized and morally offended, and they denied Brunetti’s copyright application. The Wall Street Journal, at the link, said
On [last] Monday the Justices will consider whether to broaden First Amendment protection to trademarks that offend moral sensibilities.
More correctly, though, whether the Justices recognize this or not, they’ll be considering whether to protect trademarks that offend the particular sensibilities of a few Government bureaucrats.
What constitutes scandalous is inherently subjective and depends on cultural mores….
This, on the other hand, is overbroad. Again, what constitutes scandalous behavior (what is scandalism?) in Government permitting doesn’t depend on cultural mores so much as it depends on the mores of a few Government bureaucrats and on how those bureaucrats choose to interpret what they personally view as the nation’s cultural mores.
It’ll be instructive if Brunetti doesn’t get a unanimous favorable ruling.