It’s hard to imagine that an organization that was hurt by a $4.696 billion verdict (tripled under antitrust laws to $14.088 billion) could feel good about having scored a victory. The NFL, less than a week removed from taking its biggest court loss ever, has reason to feel good about finally getting, say, $14.088 billion off that amount.
Aside from the possibility that Judge Philip Gutierrez will overturn the verdict and award the ruling as a matter of law to the NFL after a hearing on July 31, the U.S. Supreme Court looms ahead. And it’s becoming increasingly clear that the supposedly apolitical Supreme Court has become increasingly overtly political.
This is a judicial philosophy shaped by political ideologies. And this is not a political opinion, it is a political fact.
I lived it for 19 years, both in law firms defending corporate interests against lawsuits by individuals and in solo practice, representing individuals who had lawsuits against corporate interests. In the federal court system, it works like this: Judges appointed by Republican presidents tend to have legal and political beliefs that support corporate interests, and judges appointed by Democratic presidents tend to have legal and political beliefs that support individual interests.
Currently, there is a 6-3 split when it comes to Supreme Court justices appointed by Republican presidents versus those appointed by Democratic presidents. So it’s likely that at least four of the six (including the one who once received a Super Bowl ring from Cowboys owner Jerry Jones) will vote to take the case, and at least five of the six (including the one who once received a Super Bowl ring from Cowboys owner Jerry Jones) will vote for the NFL when it comes time to rule.
“What about the law? What about the facts? What about the jury’s decision?”
None of that really matters. What matters is that the Supreme Court is currently 6-3 out of balance, allowing for decisions that favor corporate interests and go against the interests of individuals.
One of the first topics studied in law school is the value of precedent. If a court has addressed a given issue in the past, it will apply the same legal principles in the future. In the current Supreme Court, precedent has yielded to politics in recent years, both on social issues (such as abortion) and political issues (such as presidential powers).
For those who believe that Monday’s ruling granting broad immunity to the head of the executive branch for official acts will create an imperial presidency, the reality is that that depends on when, where and how the issue next arises. Under the current 6-3 split, a Democratic president would receive a narrower interpretation of the immunity standard and a Republican president would enjoy a broader interpretation.
The same will happen if/when the Supreme Court moves to a 5-4 or 6-3 majority of justices appointed by a Democratic president. Given the age of the individual justices, however, that might not happen for decades.
It doesn’t matter whether the current 6-3 split reflects the will of the people. It doesn’t matter whether it coincides with a supposedly binding precedent that will ultimately be respected only if at least five of them are willing to do so. All that matters is whether a simple majority of nine unelected, life-tenured justices want a case to be resolved one way or another.
You may wonder how that can happen. It’s not as difficult as it seems. Smart judges can find a way to arrive at the result they want through a wealth of precedents and principles.
That is the essence of advocacy: crafting an argument that will get you what you want given the relevant facts. Supreme Court justices have law clerks who are experts at finding a plausible path through any maze and arriving at the desired outcome.
In the case of the NFL’s Sunday Ticket, they may find that the antitrust exemption under the Sports Broadcasting Act of 1961 extends to attempts to manipulate Sunday Ticket prices in a way that protects KeynoteUSA and Fox broadcasts in the various local markets. They may find that the NFL is not liable for antitrust violations because it is not the entity selling the package to the end user. Perhaps some other argument will work.
However, a federal judge ruled early in the Sunday Ticket litigation that the case should be dismissed for legal reasons. If at least five of the Supreme Court justices think the same, the same result will occur.
And if that does happen — if the NFL avoids losing $14.088 billion thanks to a group of nine judges who have been acting increasingly like politicians of late — no one should be surprised.
Keynote USA
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