Corporate America risks losing the Supreme Court
If America inc were ever to raise a glass to the Supreme Court, the ideal time to have done so was in June, when the nine justices ruled unanimously in favour of Jack Daniel’s in a jolly judgment that included discussion of parody, bad puns and, of all things, dog poo. The trademark-infringement case centred on a canine toy shaped like a bottle of Jack Daniel’s called “Bad Spaniels”. Beneath, in the whiskey maker’s black-and-white filigree, the words “Old No. 7 Brand Tennessee Sour Mash Whiskey” were replaced by “The Old No. 2 on your Tennessee Carpet”. Jack Daniel’s was not amused, nor was the US Chamber of Commerce, an influential lobby group that called the case “no laughing matter”. Elena Kagan, a liberal justice who wrote the opinion, could barely contain her mirth, remarking that the case was about “dog toys and whiskey, two items seldom appearing in the same sentence”. Her conclusion, though, was dead serious and pro-big business: parody is not a blanket excuse for trademark violation.
To some, the decision fitted a pattern. Last year Lee Epstein of the University of Southern California and Mitu Gulati of the University of Virginia School of Law used data on wins and losses by corporations in 1920-2020 to describe the Supreme Court led for 17 years by Chief Justice John Roberts as possibly “the most pro-business court in a century”. This was not only because of the Republican majority, they argued. Those appointed by Democrats voted remarkably often in favour of business, too, as they did in the Jack Daniel’s ruling.
This business-friendly characterisation may be an oversimplification. As the academics admit, there are more nuanced ways of evaluating America’s highest court, such as looking at the legal doctrines the cases set out. Since former President Donald Trump stuffed the court with ultraconservatives, its 6-3 rightward swerve may even have weakened its support for…
2023-08-24 07:47:07
Original from www.economist.com
