Continuing a discussion of the Supreme Court's term: From Jack Daniels to Steven Donzinger

 

Jack Daniels Properties, the corporate owner of trademarks associated with Jack Daniels, a brand of whiskey, won a high profile  intellectual property case this term.

The case involved a dog toy in the shape of a bottle of whiskey, with markings that reference Jack Daniels in a way that ALSO references dog poop. For example, the pseudo-bottle bears a rhyming code name, "Bad Spaniels." Where  a bottle of JD whiskey bears the familiar description "Old No. 7 Brand Tennessee Sour Mash Whiskey" the dog-toy doppelganger says " The old No 2 on your Tennessee carpet." 

Whether you find punning poop jokes funny is a matter of taste.  The "Bad Spaniels" decision is now a matter for the law books. The district court granted summary judgment to the dog-toy makers.  The appeals court affirmed that judgment and JD appealed. The defenders of the brand won before SCOTUS, which offered its own reading of the law and remanded for further consideration. 

So this was a win for Jack Daniels (though only of one round in an ongoing fight) and, in a small but not-funny way, a hedging in of free speech. Alas, the court was unanimous in delivering this new hedge, Kagan writing for the court. 

Sundays and gay weddings  

The Supreme Court gave us another case in its continuing series of those redefining the freedom of religion. 

This wasn't the web designer case (which was decided as a free speech matter). Rather, the latest entry in the Cakeshop line involved a postal worker who had decided that he didn't want to work on Sundays. The court decided that he shouldn't have to work on Sundays, EVEN IF the employer has to sustain something more than a trifling ("de minimis") cost in order to accommodate him.

Of course the post office needs to have people employed on Sundays. Mail isn't delivered that day but the whole infrastructure of moving mail from one point to another, sorting it through increasingly sophisticated machinery, and readying it for delivery the following day ... all of that has to chug along. The loss of flexibility in such assignments is not at all de minimis: the Latin phrase that had long served as the test on such matters.

Justice Alito said that courts must hereafter figure out "whether a hardship would be substantial in the context of an employer's business in the commonsense manner that it would use in applying any such test." That is about it for explanation. The idea that the magic word "substantial" is enough to enunciate a "commonsense" test is laughable. 

But now let us say something about web designers and gay weddings. The hectic end of this session saw a decision in 303 Creative v. Elenis. The named defendant, Elenis, is Aubrey Elenis, the director of the Colorado Civil Rights Division. The website company 303 Creative, which was the corporate alter ego of web designer Lorie Smith, sued Elenis in her professional capacity. 

In essence Smith sued because she wanted to be assured in advance that IF she went into the wedding website line and IF she declined to work for gay weddings, she would not become the defendant in an action brought by Elenis' agency. 

She was allegedly shocked into initiating this action when a man she has identified as Stewart requested that she design a wedding website for his upcoming same-sex marriage. 

That man appears not to exist. The whole litigation appears to have been based on a lie or, to be very kind, on a hypothetical. And, taking it kindly as a hypothetical, it becomes a request for an "advisory opinion" not as the need to settle an existing "case or controversy" in the language of the constitution.  That "case or controversy" but was speficially intended to mean that courts are not supposed to give advisory opinions.

But that long-established principle, the court should have stayed out of this. Alas it did not, and there is nothing that anyone can do about it. 

That said: I don't believe the opinion is quite so awful as so many of the pundits make it out to be.  Had it come about through a real case or controversy I might well have supported it. 

The death docket does not reflect party lines.

The 2022-23 term was the first for Justice opinion from the new Justice, Ketanji Brown Jackson. Her distinctive voice was first heard in early November when she dissented from a decision of the court. The rest of the Court refused to take a cert from a death-row inmate. Jackson would not only have taken the case, she would have reversed the appeals court and sent it back for a proper materiality analysis -- that is, an analysis of whether the evidence that was wrongly suppressed was material and could have left to a different result. Chinn v. Shoop.  

Here is a quote from that dissent: "Because Chinn’s life is on the line, and given the substantial likelihood that the suppressed records would have changed the outcome at trial based on the Ohio courts’ own representations, see Harrington v. Richter, 562 U. S. 86, 112 (2011), I would summarily reverse to ensure that the Sixth Circuit conducts its materiality analysis under the proper standard."

And, speaking of the death docket!, just two days after the issuance of that dissent the Supreme Court declined to stay the execution of Tracy Beatty, who had argued that he had been denied a proper psychological evaluation. SCOTUS remained on the sidelines, there were no recorded dissents to this decision not to stay. Beatty was executed later that day. 

Pollution and the  separation of powers. 

The Court weighed in on the long running Chevron-pollution saga this term. 

Back in 1993, Ecuadorians sought relief in a federal district court in New York for personal and environmental injuries in their home country. They were represented by one Steven Donzinger. The company demanded the trial be transferred to Ecuador. They won that point. But the Ecuadorian court then delivered an $8.6 billion judgment against Chevron.   

So the company had to fight in the southern district of New York after all. It proved perfectly capable of doing so. It won an injunction against the enforcement of the Ecuadorian judgment in the United States, and a constructive trust on all assets that Donzinger may have received in any country as a consequences of that judgment. 

Also as part of its campaign against Donzinger, Chevron has sought to have him prosecuted in SDNY for contempt of court (I won't go into the specifics there.) The district attorney declined to press charges. The court found that intolerable. It set up and staffed its own prosecutorial office, and under prodding from that office, the court convicted Donzinger of contempt. 

So now that original pollution case has morphed into a separation-of-power case. Can a district court do that? The Second Circuit said that, in this particular case, it can. The court by a 7-2 vote declined to grant cert (that is, take the appeal). There were two dissenters from the decision to leave the contempt citation in place: Gorsuch and Kavanaugh. 

If you are trying to read the court as a left/right continuum, with six Justices to right of center, this refusal t gran cert and its two dissents will seem mysterious. After all, the case began as an assault on a giant corporation by an environmental activist. Isn't that leftist? Shouldn't the people seeking to save Donsinger from harsh punishment be among those we tag as left? 

Apparently not. Two of Trump's nominees took up the cause. No one else did. Why? Perhaps Trumpettes are inclined to support a broad reading of the separation-of-powers principle because they hope it will lead to an all-powerful executive, unchecked by courts or legislature, should Trump himself return to that eminence.  I will let you consider the significance of that, each for each. 

A final thought for today. 

Back when I identified as an anarcho-capitalist (it seems so long ago already) I used to think that certain issues deserve special consideration in round-ups like this because they explicitly involve the concept of sovereignty. What I thought of as the myth of sovereignty was also, I thought, the root of all evil. 

So cases about Indian tribes, or the not-a-state of Puerto Rico, were a subject of fascination as they approached the beating heart of this myth. 

I think now that such a way of thinking is a dead end.  Still, such issues have a special place in my heart. I consider voting rights cases to be among them.  Voting is the process by which the mythic sovereign, the "We" that serves as the first word of a certain important document, tell each other and our functionaries what we want. 

At any rate ... sovereignty cases tomorrow!