The current Supreme Court term may turn out to be one of the most far-reaching, and recent hearings demonstrate why. Two cases heard have the potential to alter Americans’ lives in ways small and large, from deciding what you pay for apps on your phone, to whether the police can take your belongings.
Taking a Bite Out of Apple?
In Apple Inc. v. Pepper, a group of Apple’s App Store customers sued the company, alleging the tech giant is acting as an illegal monopoly by prohibiting competition. The plaintiffs argue that Apple tells app developers what they are allowed to charge, sets their phones up only to accept Apps the company approves of, and restricts App Store sales in any way it chooses.
The case is really about whether a consumer can sue one who delivers goods (Apple’s App Store) for damages under antitrust laws when a third party (app developers) set the price. Apple has argued in its defense that the law does not permit the court to hold them liable, because app developers set the app prices in the store, and so the company consequentially cannot hold a monopoly.
Under a traditional analysis of antitrust law – one that Apple is hoping will give them a win – damages belong only to the “immediate victims of the anticompetitive conduct (‘direct purchasers’), and not to downstream parties claiming ‘pass-through’ damages (‘indirect purchasers’).” The times may be a changing in this area of the law, however, as the Court said in granting this case a hearing:
“Electronic marketplaces such as Apple’s App Store present a new wrinkle on this doctrine, because the marketplace sponsor (e.g., Apple) interacts with and delivers goods ‘directly’ to consumers, but as an agent on behalf of third-party sellers.”
The potential financial liability for Apple could easily be in the hundreds of millions of dollars if the Court rules they can be sued under the law, and that they acted improperly.
Magna Carta and Black Lives Matter Converge
Hundreds of millions of dollars are currently taken from the public, as states and municipalities can and do use seizure laws like a piggybank to steal from those who are least able to challenge them. Philadelphia, for instance, seized the home of a couple because their son sold drugs from it – a one-time sale for $40 worth of contraband.
In Timbs v. Indiana the Court took the case to settle the question “[w]hether the Eighth Amendment’s Excessive Fines Clause is incorporated against the States under the Fourteenth Amendment.”
Timbs bought himself a Land Cruiser for $42,000. Then he sold some heroin to an undercover officer. Police seized the vehicle claiming that because Timbs used it to transport drugs, they could keep it. Timbs says the forfeiture violates the Eighth Amendment’s ban on excessive fines, particularly because the value of the vehicle taken is four times the maximum fine for the crime.
Since he used an inheritance to buy the vehicle, Indiana could not argue that Timbs purchased it with drug sales proceeds, a typical response to a takings challenge. The state has argued that it can confiscate the cars of anyone who breaks the law with a car. Asked explicitly if the state could confiscate a Bugatti because its driver was speeding five mph over the limit, the state’s solicitor general said yes!
To the incorporation question, some history from SCOTUSblog’s Amy Howe:
When it was originally enacted, the Bill of Rights – the first 10 amendments to the Constitution – applied only to the federal government; it did not automatically apply to the states. Since then, however, the Supreme Court has ruled that most provisions of the Bill of Rights do apply to the states through the Constitution’s 14th Amendment, which bars states from depriving anyone of “life, liberty, or property, without due process of law.”
If the Court rules for Timbs, it will incorporate the Eighth Amendment protections from excessive fines against state and local governments. While it’s never safe to assume what’s in a Justice’s head based on a few questions from the bench, it sure did seem like the Court was ready to adopt wholesale incorporation of the Eighth Amendment. Justice Gorsuch quipped:
“Here we are in 2018 – still litigating incorporation of the Bill of Rights. Really? Come on, General.”
Such a ruling would be great news not just for Mr. Timbs, but for all Americans, who now live under threat of ruination for something that may not even be their fault.
Decisions in these cases are not expected anytime soon, but Liberty Nation will keep you posted.