Fox News senior judicial analyst Andrew Napolitano expressed shock on Monday after conservative Supreme Court Justice Brett Kavanaugh sided with the nation's top court's liberal justices in a ruling allowing iPhone users to sue Apple over high prices on its exclusive App Store.
"I did not see this coming," Napolitano, who formerly served a New Jersey Superior Court judge, said during a Fox News segment. "All the indications about Brett Kavanaugh were that he was a monolithic conservative that wouldn't even listen to the other side."
The former judge recounted that Kavanaugh had said during his controversial confirmation hearings last year that he was "not a monolithic anything" and that he listened to the facts and then decided how the law should apply. "Today, he and the four liberal members of the court radically expanded the rights of plaintiffs to bring class actions," Napolitano said.
"This morning, the Supreme Court of the United States radically expanded plaintiffs' rights to commence class actions against deep-pocketed corporations," Napolitano continued. "And what alliance was it? It was the four liberal members of the court and its newest member, Justice Brett Kavanaugh, writing a decision that is a plaintiff's lawyer's delight."
While Kavanaugh's decision came as a surprise, the more liberal judges had already suggested how they would vote during a November hearing.
"It just seems to me that when you're looking at the relationship between the consumer and Apple, that there is only one step," Associate Justice Elena Kagan said at the time, referring to the way iPhone users purchase apps.
"There's no middleman in this particular transaction," David Frederick, the lawyer representing consumers, said, agreeing with the liberal justice.