Petitions of the week

In New Mexico prison killing, a lingering question over jurisdiction

The Petitions of the Week column highlights a selection of cert petitions recently filed in the Supreme Court. A list of all petitions we’re watching is available here.

Five years ago, the Supreme Court ruled that pleading guilty to a crime does not prevent a defendant from arguing that the law criminalizing their conduct is unconstitutional. This week, we highlight cert petitions that ask the court to consider, among other things, an issue that decision left open: Under what circumstances can someone found guilty at trial, instead of in a plea deal, attack the constitutionality of the law under which they were convicted?

WHAT WE'RE READING

The morning read for Friday, March 24

Each weekday, we select a short list of news articles, commentary, and other noteworthy links related to the Supreme Court. Here’s the Friday morning read:

• The Secret Joke at the Heart of the Harvard Affirmative-Action Case (Jeannie Suk Gersen, The New Yorker)
• Ethical no man’s land: can the US supreme court be trusted to police itself? (Ed Pilkington, The Guardian)
• The Conservative Legal Movement Is Coming For Public Defenders Next (Jay Willis, Balls & Strikes)
• J&J to seek U.S. Supreme Court review on unit’s bankruptcy (Dietrich Knauth, Reuters)
• The U.S. Supreme Court Should Vacate and Remand in Moore v. Harper (Richard Bernstein, Election Law Blog)

ARGUMENT ANALYSIS

Justices appear sympathetic to Jack Daniel’s in trademark parody dispute

As expected, Wednesday’s argument in Jack Daniel’s Properties v VIP Products showcased the justices grappling with line-drawing. At issue in the case was how First Amendment trademark principles should apply to a dog toy that pokes fun at Jack Daniel’s whiskey – a toy the size and shape of a Jack Daniel’s bottle, bearing a familiar-looking label that reads “Bad Spaniels” instead of “Jack Daniel’s.”

The case comes to the court from the U.S. Court of Appeals for the 9th Circuit, which held that the toy was protected under the reasoning of Rogers v. Grimaldi a 1989 ruling by the U.S. Court of Appeals for the 2nd Circuit in a case filed by legendary movie star and dancer Ginger Rogers, who was seeking to block the use of the title “Ginger and Fred” by a movie about two fictional Italian cabaret performers. Specifically, the 9th Circuit reasoned that Rogers requires an exception to the trademark statute for expressive speech and that the “Bad Spaniels” dog toy fell within the exception. The problem for VIP Products, which makes the dog toy, is that almost none of the 9th Circuit’s decision discussed why anybody might want to tolerate the challenged toy. Rather, almost all of the argument focused on explaining how this intolerable parody differs from political or artistic works that Rogers and the First Amendment should protect.

WHAT WE'RE READING

The morning read for Thursday, March 23

Each weekday, we select a short list of news articles, commentary, and other noteworthy links related to the Supreme Court. Here’s the Thursday morning read:

• A Chew Toy for Dogs Provokes a Spirited Supreme Court Argument (Adam Liptak, The New York Times)
• Republican Ted Cruz introduces bill to block US supreme court expansion (Martin Pengelly, The Guardian)
• How Ginsburg’s death and Kavanaugh’s maneuvering shaped the Supreme Court’s reversal of Roe v. Wade and abortion rights (Joan Biskupic, CNN)
• After appeals loss, Johnson & Johnson will take Texas two-step case to the US Supreme Court (Kevin Dunleavy, Fierce Pharma)
• What will the U.S. Supreme Court’s decision on a Navajo Nation water rights case mean for other tribes? (Shannon Mullane, The Colorado Sun)

ARGUMENT ANALYSIS

Justices debate propriety of litigation in trial courts while defendants are on appeal seeking arbitration

If anything is clear after Tuesday’s argument in Coinbase v. Bielski, it is that the justices are not going to agree on the answer. The case asks what a trial court should do if it denies a defendant’s motion for arbitration. The Federal Arbitration Act gives the defendant the right to an immediate (“interlocutory”) appeal, but it says nothing about a stay of litigation in the district court. So in these cases (proposed class actions against Coinbase, a large cryptocurrency exchange), the federal district courts in California have both been proceeding with pretrial litigation for more than a year while the court of appeals considers Coinbase’s argument that its pre-dispute arbitration agreement makes it exempt from litigation.

For one group of justices (including Justices Sonia Sotomayor and Ketanji Brown Jackson), this is an easy case for the customers (individuals who had accounts at Coinbase). Two points were central for them. First, one section of the Federal Arbitration Act (Section 6) explicitly obligates the district court to grant a stay when it orders arbitration. The provision at issue here (Section 16, which allows immediate appeals from orders denying arbitration) does not include such a provision. For Jackson, that was “problematic,” because “we would expect to see that same kind of language with respect to this interlocutory appeal if that’s what Congress intended.” Indeed, she found the argument of Neal Katyal, representing Coinbase, perverse because he argued that Congress needed to call explicitly for a stay to protect the right of arbitration “when you definitely get arbitration but they don’t have to say it when we don’t know whether or not you get arbitration.”