Process and product are two entirely different considerations, two entirely different thought processes. Two of today's Supreme Court end-of-term(ish) opinions demonstrate that… and not in a way that brings credit upon, well, anyone involved.
First, the really obvious one: It's dangerous to make overarching general statements "of law" out of context, because those statements will then be misused as precedent in other out-of-context circumstances. Fortunately, this particular example is one from a concurring opinion; unfortunately, it demonstrates the dangers by citing from other concurring opinions.
First, the upshot of Alabama’s argument is that the Court should overrule Gingles. But the stare decisis standard for this Court to overrule a statutory precedent, as distinct from a constitutional precedent, is comparatively strict. Unlike with constitutional precedents, Congress and the President may enact new legislation to alter statutory precedents such as Gingles. In the past 37 years, however, Congress and the President have not disturbed Gingles, even as they have made other changes to the Voting Rights Act. Although statutory stare decisis is not absolute, “the Court has ordinarily left the updating or correction of erroneous statutory precedents to the legislative process.” Ramos v. Louisiana, 590 U.S. ___, ___ (2020) (Kavanaugh, J., concurring in part) (slip op. at 4); see also, e.g., Kimble v. Marvel Entertainment, LLC, 576 U.S. 446, 456 (2015); Patterson v. McLean Credit Union, 491 U.S. 164, 172–173 (1989); Flood v. Kuhn, 407 U.S. 258, 283–284 (1972); Burnet v. Coronado Oil & Gas Co., 285 U.S. 393, 406 (1932) (Brandeis, J., dissenting).1
1. Unlike ordinary statutory precedents, the “Court’s precedents applying common-law statutes and pronouncing the Court’s own interpretive methods and principles typically do not fall within that category of stringent statutory stare decisis.” Ramos, 590 U.S., at ___, n.2 (opinion of Kavanaugh, J.) (slip op. at 5 n.2); see also, e.g., Kisor v. Wilkie, 588 U.S. ___, ___–___ (2019) (Gorsuch, J., concurring in judgment) (slip op. at 34–36); id., at ___–___ (Kavanaugh, J., concurring in judgment) (slip op. at 1–2); Leegin Creative Leather Products, Inc. v. PSKS, Inc., 551 U.S. 877, 899–907 (2007); Arbaugh v. Y&H Corp., 546 U.S. 500, 510–516 (2006).
Allen v. Milligan, No. [20]21-1086 (US 08 Jun 2023), slip op. at 42–43 log. (PDF, official) (Kavanaugh, J., concurring) (some typography corrected).1
The various citations (both in the body and the footnote) are not relevant to a voting-rights context. Ramos is the closest to on point, being concerned with jury unanimity, which is at least related to a fundamental right. The other matters cited, however, concern only rights initially provided by statute, ranging from antitrust and exemptions therefrom to the operation of the Patent Act. Conversely, voting rights are not just guaranteed by the Constitution, but are the fundamental core of any conception of democracy — Over Here, Over There, anywhere. And stepping back a bit to the context in these voting-rights cases from a one-party-rule state, purported "statutory stare decisis" presumes that the statute was enacted without any conflict of interest or other improper consideration — which, in a voting-rights case regarding a statute enacted by that one-party-rule legislature, is so circular in reasoning that my eyeballs are spinning just reading it. Bluntly, one cannot grant elected officials the right and ability to determine details in how they are elected without both expecting self-interested abuse and providing for a substantial, nonelected (and preferably neutral-expert) check thereon.2
More to the point here, though, notice that many of these citations are not to the holdings of the cases in question, but to concurring and even dissenting opinions (and often even secondary issues therein)… in a purportedly concurring-in-the-judgment opinion. This is explicit reliance on outlier data in support of an outlier theory that does not have general application — but will no doubt be later used in support of some other, quite probably inimical, purpose (of purportely general application) because "it's persuasive or even binding precedent."3
OK, enough on voting rights. How about something easier, like the conflict among free speech, "art," and trademark law?4 At its core, though, the other "big" opinion this morning — Jack Daniel’s Properties, Inc. v. VIP Products[,] LLC, No. [20]22–148 (US 08 Jun 2023) — doesn't actually resolve much of anything. And probably shouldn't, precisely because the entire body of law has a similarly-circular-method logical flaw.
This is the "dog chew-toy shaped like a bottle of Jack Daniels" case. Jack Daniels appears to have lost its sense of humor and sense that its mark/branding doesn't relate to the entire universe in the last decade. The Court ruled unanimously that
We hold only that it is not appropriate when the accused infringer has used a trademark to designate the source of its own goods—in other words, has used a trademark as a trademark. That kind of use falls within the heartland of trademark law, and does not receive special First Amendment protection. The dilution issue is more simply addressed. The use of a mark does not count as noncommercial just because it parodies, or otherwise comments on, another’s products.
Id., slip op. at 5 log.5
Let's neglect for a moment that neither the lawyers nor any of the courts have even tried to deal with "the changed context is the parody, is the speech that may/may not be protectable First Amendment expression" problem underlying jurisprudence relating to "parody" in copyright, in trademark, and in other areas of law (even defamation law). A parody's a parody, no matter how small… the intellect/literary sophistication/artistic taste/weltanschauung of those deciding what is, and is not, a parody — especially of anything in which they have a personal interest or connection. Dr. Seuss Enterprises, Inc. can bite me (if it does sue me, that would be an "extraordinary case" under even the cramped understanding of that term regarding attorney's fees — find a "commercial purpose" of this blawg, for starters).
Unfortunately, many of the problems in Jack Daniels arise from the combination of the company's apparent change of heart regarding how to deal with its "fame" and the attendant consequences (its own perception of its "fame" may not match that of significant subsets of the public), the ever-evolving concept of "commercial use" in contrast with ever-evolving artistic/literary conceptions of allusion epitomized by musical sampling and so-called "appropriation art" (all tied up in the mistheorized concept of "transformative use," but there isn't enough bandwidth in the entire city to unpack that issue), and an Agent K-style explanation of the Men in Black Labels' lack of anything resembling a sense of humor.6
But further down yet another rabbit hole: What is the actual commercial relationship between "ridicule and/or humorous noncompetitive reference" and "dilution"? Here, I'm afraid, Justice Kagan and the Court put the cart about 250m before the horse, while the horse was still a barely-standing foal unable to pull the cart in the first place (expecially considering the chocks in front of the cart's wheels). One need not draw some line within so-called "speech-act theory" — an exercise that would make recognizing obscenity under the Jacobellis standard clear and easy — to acknowledge that all expression in the commercial space always has significant intersection with both actual mark/branding ownership and general discourse. The echo of every First Amendment dispute having significant intersection with both legal principles and particular facts should be fairly apparent. Then, too, there's the quandary of cross-class dilution (and underneath that, the validity of a nineteenth-century-discrete-goods-oriented classification scheme in the twenty-first century in first instance), which has been evaded throughout: Is "dilution" the same thing within International Class 33 ("alcoholic beverages, except beer," as stated for the Jack Daniel's mark) as it would be for a mark in Class 33 that is purported "diluted" by a product in International Class 28 (primarily games and toys)? The latter is what's at issue here, but the various opinions — again — discount the relationship between medium and target.
Then, too, there's a further unstated target (in the ill-conceived legal sense) of parody lurking under here: Not Jack Daniels itself, or the brand itself, but corporate ownership of expression. This is so subject to post hoc rationalization, though, that law is ill-suited to even consider it. It's ultimately not about real damage to commercial value of the company (or even imagined, particularly given how GAAP characterizes "good will" and "brand valuation" in ways that make counting angels on the head of a pin seem utterly rational and achievable), but damage to the egos and self-regard of those owning/managing the company.7 And with extraordinarily rare exceptions, that's not something that law is institutionally competent to consider in the first place — despite law's gravitational pull of all "disputes" into itself.
- Entirely irrelevant but irritated aside: Some day, Supreme Court practice, lawyer practice (especially in state courts), official guidance from places like the never-sufficiently-damned Bluebook (its "competitors" are no better on this), and general considerations of readability and typography are going to meet up. Probably in a dark alley with broken bottles and drunken missed swings, but there's nothing happening here, officer. The misuse of typographical devices here was no less irritating for being prescribed by the rules (and traditions) of an organization that simultaneously proclaims its infallibility and reliance on precedent. The cognitive dissonance with the substance of my criticism of the segment of Justice Kavanaugh's opinion is a bit much this early.
And we'll leave aside that there's no good reason for URLs that don't exactly match the outside referent. There are lots of bad/lazy ones… but no good ones. Bluntly, a member of the public or profession should be able to type the URL directly in to the address bar knowing only the official citation (in this instance, the case number) when away from other reference sources and without having to rely upon any "search" system. This is also a verification-of-integrity cross-check, but that's a concept that has escaped the legal system for centuries (which is, itself, not a good reason — "tradition" is not enough).
- Which is not what we have. We have interlocking and self-reinforcing systems of legislatures, election supervisors themselves directly subject to elections, a judiciary with its own tainted-by-partisanship flaws, and "experts" in elections who are seldom anything other than partisan (yes, that includes you, Hans). Excuse me for suggesting that we need to pay more attention to our aspirations (distinct from policy preferences) when we design governmental systems or allow them to evolve without guidance… especially when such neglect itself reveals aspirations inconsistent with the stated aspirations for that government (again, that includes you, Hans). Means shape ends achieved.
- As in the Court's disposal — also this morning — of a "precedent-based" criminal law opinion from the Fifth Circuit based on logic in those precedents that would have been the envy of any pretzel maker. Dubin v. US, No. [20]22–10 (US 08 Jun 2023). The law is not a "seamless web" — it's very seamy indeed, and is at best a collection of common methods of reasoning from basic presumptions (similar to "a circle is exactly 2π radians in diameter," and you wouldn't be reading this if that was universally true because transistor design depends upon non-Euclidean geometry having real-world applications). Overextending either the reasoning or the presumptions exposes the seams.
- <SARCASM> That the entire dispute, and judicial "resolution" thereof, depends upon judicial miscasting, misunderstanding, and misapplication of fine distinctions around "parody" is for another time. It's not like I haven't excoriated the courts for ignoring the nonlegal precedent/expert opinion from literary and arts scholars for three-plus decades, or anything like that. But judicial/legal ignorance of and disdain for true in-field expertise originating without a law degree has plenty of precedent. </SARCASM>
- Cf. note 1 supra. If a court releases its initial opinions with "mere precatory matter" that ends up being reprinted in the court's own official reports later, and has several different page-numbering schemes within that initial opinion, I'm going to refer to the logical pagination of the PDF that constituted the court's initial opinion. The inexperienced-with-documentation-systems fools at the four self-regarding law reviews can just bite me regarding "Bluebook compliance" — at least until they have some experience in pointing nonnative English speakers to the relevant parts of government documents that govern their lives (let alone as much experience as I had with that before law school).
- Men in Black (1997). That Agent K was stating that while impersonating a US government official just makes it more appropriate. The less said about how that either (a) applies to the legal profession at large, or (b) reflects on the inept criticisms of judicial use of pop-culture reference by people who've obviously read too little literature of either the Enlightenment or of non-English origin, the better. Come to think of it, that's actually the same issue as criticizing legal takes on "parody," isn't it?
- They're heirs. They've got MBAs (and JDs). You must respect their authority — they said they have it.