SCOTUS Watch

[malchior]

And Gorsuch is in. Good articles by the NY Times and Washington Post putting good context around how bad McConnell's efforts were for the Senate and country.

Bonus content - this is true and disappointing:

[RunningMn9]

Well....I mean, not really. The filibuster didn't exist in any form until 1913.

I don't know how far we got with this discussion, but it seems like a good time to chime in and point out that you are wrong.

According to testimony given to Congress back in 2010, your dates aren't quite correct. The concept of a filibuster became possible by Senate rules (apparently by accident) back in 1806, when they got rid of something called the "previous question motion".

The first filibuster in the Senate was in 1837. For the next 80 years there were various attempts to pass cloture rules that would kill the filibuster, but ironically they were all defeated by...filibusters. Cloture rules were finally passed in 1917, but only as a supermajority (60 votes).

From here.

[raydude]

I can't wait for the day when this rule change comes back to haunt McConnell, and he tells us all how wrong it is that we don't have the filibuster anymore for judicial nominees.

That's just politics as usual in the 21st Century. Just look at the liberal commentators who praised Democrats for getting rid of the non-Supremes judicial filibuster a few years ago and abhor McConnell for trashing the rest of it now.

Or, you know, Democratic senators doing the same thing.

The democrats did it after 79 Obama nominees were blocked under filibuster. Versus 68 blocked total for all other presidents before him. The republicans did it after just 1.

Fucking snowflakes.

[RunningMn9]

The democrats did it after 79 Obama nominees were blocked under filibuster. Versus 68 blocked total for all other presidents before him. The republicans did it after just 1.

Fucking snowflakes.

The larger point though is that of course Democratic politicians flip flop with the winds, same as Republicans. When I wish for the day the McConnell gets fisted with the most liberal SCOTUS nominees in the land and his party can do nothing to stop it and he cries about the loss of the filibuster - it's not because that's a unique situation.

[Chrisoc13]

I can't wait for the day when this rule change comes back to haunt McConnell, and he tells us all how wrong it is that we don't have the filibuster anymore for judicial nominees.

That's just politics as usual in the 21st Century. Just look at the liberal commentators who praised Democrats for getting rid of the non-Supremes judicial filibuster a few years ago and abhor McConnell for trashing the rest of it now.

Or, you know, Democratic senators doing the same thing.

The democrats did it after 79 Obama nominees were blocked under filibuster. Versus 68 blocked total for all other presidents before him. The republicans did it after just 1.

Fucking snowflakes.

I love the idea that Democrats are somehow above this. They aren't. And equating nominees to a supreme Court nominee is absurd.

[RunningMn9]

I agree that they aren't above this. But it's also absurd to not acknowledge the gross misuse of the filibuster under McConnell's "leadership".

[Zarathud]

Getting screwed by McConnell and Trump was a pretty good reason for the Democrats to re-evaluate their position. In that light, it's not as much as a flip flop as a change in circumstances.

Besides, that dog doesn't hunt anymore after the Republican Party embraced Donald Trump.

[Chrisoc13]

I agree that they aren't above this. But it's also absurd to not acknowledge the gross misuse of the filibuster under McConnell's "leadership".

I am no fan of McConnell nor the republicans. And I absolutely think they should have had hearings on Obama's nominee for the supreme Court. But I shouldn't have to write that every single time I respond. I've made it clear multiple times in this very thread.

But the democrats are politicians too and are nothing special. Let's not pretend if they had a simple majority in the Senate last year they wouldn't have abolished the filibuster instantly as well. They are more alike than they are different.

[malchior]

But the democrats are politicians too and are nothing special. Let's not pretend if they had a simple majority in the Senate last year they wouldn't have abolished the filibuster instantly as well. They are more alike than they are different.

Both-side-ism at the worst. They are all politicians. Yes. Do they all lie? Sure. Has one side been much, much, much worse (with oodles of data to prove it)? Yes. And it is the Republicans by a mile. The Republicans went off the rails when Obama was elected in Congress. Cloture motion numbers went off the charts. Especially over the last 5 years. Every DC Court nominee was filibustered and many executive appointees until Reid nuked that. Until last year, no Supreme Court nominee has been ignored completely by the Senate. Ever. And yes the Dems might have killed the filibuster too but that would have been because the Republicans had promised to block every Hillary Supreme Court nominee too. The system is breaking down and both parties have a piece of it but the vast majority of the abuse has Republican fingerprints all over it.

[RunningMn9]

But I shouldn't have to write that every single time I respond.

You don't have to write that every single time that you respond. I didn't say what I did because I thought you were a secret McConnell/Republican lover. I said what I did because you said "And equating nominees to a supreme Court nominee is absurd."

No one is "equating nominees to a SCOTUS nominee". People were pointing out that what drove the Democrats to change the cloture rule for non-SCOTUS nominees was the obscene abuse of the filibuster that McConnell was responsible for.

That didn't happen here. This filibuster was brought about by a second egregious abuse of power by McConnell, who clearly circumvented the Constitution by preventing even a discussion of Garland over the past year.

The point being made was that it is true that there are similarities between the actions that the Democrats took to unclog the clusterfuck that McConnell had made of the non-SCOTUS nomination process and what McConnell has done here. But there are awfully big differences as well, that your comment seems to gloss over.

[Chrisoc13]

But the democrats are politicians too and are nothing special. Let's not pretend if they had a simple majority in the Senate last year they wouldn't have abolished the filibuster instantly as well. They are more alike than they are different.

Both-side-ism at the worst. They are all politicians. Yes. Do they all lie? Sure. Has one side been much, much, much worse (with oodles of data to prove it)? Yes. And it is the Republicans by a mile. The Republicans went off the rails when Obama was elected in Congress. Cloture motion numbers went off the charts. Especially over the last 5 years. Every DC Court nominee was filibustered and many executive appointees until Reid nuked that. Until last year, no Supreme Court nominee has been ignored completely by the Senate. Ever. And yes the Dems might have killed the filibuster too but that would have been because the Republicans had promised to block every Hillary Supreme Court nominee too. The system is breaking down and both parties have a piece of it but the vast majority of the abuse has Republican fingerprints all over it.

I have no loyalty to either party and I see liberals and conservatives, democrats and republicans as at fault. Calling something "both sideism" doesn't make it a true insult. That's some strange tactics. You've decided it isn't both sides. Good for you. That doesn't mean those that disagree with you are somehow less intelligent or unwilling to see issues with one side or the other. So using that as an insult is... Less than helpful. In my eyes there isn't a side that is above these tactics. This forum has crowned the D side the reasonable side, but that's just the lean of this forum. I don't lean liberal so I don't see them as the big kids in the room. Frankly I don't see very many big kids in the room at all. So yes, I think both sides are playing politics just as much as the other. Neither side is above it. Don't kid yourself.

RM- Again I don't have time to go into every detail I "glossed over." Hope that makes sense. I enjoy reading and having small discussions on oo but I really don't have time for going into every glossed over detail and discussing the finer points of when Rs are wrong and when Ds are wrong. If that is what is required than you will have to have discussions only with yourself, I don't get in debates or discussions with you, I don't have time for it. Feel free to take up both sides and continue on

[RunningMn9]

I don't get in debates or discussions with you, I don't have time for it.

You don't get in debates or discussions with anyone (without complaining about it). And that's fine. But when you post things, sometimes people will post counter-things. That's kind of how public conversations work.

[malchior]

But the democrats are politicians too and are nothing special. Let's not pretend if they had a simple majority in the Senate last year they wouldn't have abolished the filibuster instantly as well. They are more alike than they are different.

Both-side-ism at the worst. They are all politicians. Yes. Do they all lie? Sure. Has one side been much, much, much worse (with oodles of data to prove it)? Yes. And it is the Republicans by a mile. The Republicans went off the rails when Obama was elected in Congress. Cloture motion numbers went off the charts. Especially over the last 5 years. Every DC Court nominee was filibustered and many executive appointees until Reid nuked that. Until last year, no Supreme Court nominee has been ignored completely by the Senate. Ever. And yes the Dems might have killed the filibuster too but that would have been because the Republicans had promised to block every Hillary Supreme Court nominee too. The system is breaking down and both parties have a piece of it but the vast majority of the abuse has Republican fingerprints all over it.

I have no loyalty to either party and I see liberals and conservatives, democrats and republicans as at fault. Calling something "both sideism" doesn't make it a true insult. That's some strange tactics. You've decided it isn't both sides. Good for you. That doesn't mean those that disagree with you are somehow less intelligent or unwilling to see issues with one side or the other. So using that as an insult is... Less than helpful. In my eyes there isn't a side that is above these tactics. This forum has crowned the D side the reasonable side, but that's just the lean of this forum. I don't lean liberal so I don't see them as the big kids in the room. Frankly I don't see very many big kids in the room at all. So yes, I think both sides are playing politics just as much as the other. Neither side is above it. Don't kid yourself.

RM- Again I don't have time to go into every detail I "glossed over." Hope that makes sense. I enjoy reading and having small discussions on oo but I really don't have time for going into every glossed over detail and discussing the finer points of when Rs are wrong and when Ds are wrong. If that is what is required than you will have to have discussions only with yourself, I don't get in debates or discussions with you, I don't have time for it. Feel free to take up both sides and continue on

You've got a rather big chip on your shoulder. And this wont help and not meant to be patronizing but Both-side-isms isn't an insult. It is a talking point people use to describe the phenomena of people ascribing our political instability to both sides do it. And to an extent, Yes both sides do it but the idea is that one side has been abusing the process far more. And there is plenty of non-partisan data to prove it. You choose to ignore it. You want to say you have no loyalty and that might be true but you have serious blinders to the data out there.

[Chrisoc13]

I don't get in debates or discussions with you, I don't have time for it.

You don't get in debates or discussions with anyone (without complaining about it). And that's fine. But when you post things, sometimes people will post counter-things. That's kind of how public conversations work.

[Zarathud]

Let's not pretend if they had a simple majority in the Senate last year they wouldn't have abolished the filibuster instantly as well. They are more alike than they are different.

While the Democrats are politicians, it takes a special type of asshat like McConnell to embrace hypocrisy in the pursuit of power.

At the end of the day, even John McCain choked down his principles and voted for power.

[Kurth]

Let's not pretend if they had a simple majority in the Senate last year they wouldn't have abolished the filibuster instantly as well. They are more alike than they are different.

While the Democrats are politicians, it takes a special type of asshat like McConnell to embrace hypocrisy in the pursuit of power.

At the end of the day, even John McCain choked down his principles and voted for power.

John McCain makes me sad.

[Isgrimnur]

John McCain's principles over time are reminiscent of a roller coaster.

[tjg_marantz]

John McCain's principles over time are reminiscent of a roller coaster.

Make you want to throw up?

[Zaxxon]

In the words of John McCain, John McCain is a stupid idiot.

[RunningMn9]

I have to believe that it isn't fun to be a govt lawyer in this situation (link).

Chief Justice John G. Roberts Jr. tried to test the limits of the government’s position at a Supreme Court argument on Wednesday by confessing to a criminal offense.

“Some time ago, outside the statute of limitations, I drove 60 miles an hour in a 55-mile-an-hour zone,” the chief justice said, adding that he had not been caught.

The form that people seeking American citizenship must complete, he added, asks whether the applicant had ever committed a criminal offense, however minor, even if there was no arrest.

“If I answer that question no, 20 years after I was naturalized as a citizen, you can knock on my door and say, ‘Guess what, you’re not an American citizen after all’?” Chief Justice Roberts asked.

Robert A. Parker, a Justice Department lawyer, said the offense had to be disclosed. Chief Justice Roberts seemed shocked. “Oh, come on,” he said.

[malchior]

Cooper v. Harris previously McCrory v. Harris upheld in 5-3 opinion authored by Kagan. This ruling affirms that 2 of the districts drawn up in NC after the 2010 census were unconstitutionally racially gerrymandered. The sorta interesting part is Thomas joined the Libs with Roberts, Alito, and Kennedy dissenting.

[Defiant]

Supreme Court strikes down North Carolina congressional district maps

[Fitzy]

The sorta interesting part is Thomas joined the Libs with Roberts, Alito, and Kennedy dissenting.

This has to be another sign of the coming apocalypse.

[Kurth]

In other SCOTUS news that may only be of interest to patent-law geeks (but should be of interest to everyone), Thomas authored the unanimous opinion in the TC Heartland v. Kraft case, holding:

“The issue in this case is whether [the law] allows a plaintiff to bring a patent infringement lawsuit against a corporation in any district in which the corporation is subject to personal jurisdiction. We conclude that the amendments to §1391 did not modify the meaning of §1400(b) as interpreted by Fourco. We therefore hold that a domestic corporation “resides” only in its State of incorporation for purposes of the patent venue statute.

The reason this is a big deal is because it severely limits the ability of patent plaintiffs -- including non-practicing entities (a/k/a, "Patent Trolls") -- to sue a defendant for patent infringement any where in the country that the defendant sells its products. Prior to this decision, a ridiculous number of patent infringement cases were brought in the otherwise obscure Eastern District of Texas (Marshall, TX and environs). This was because the EDTX had adopted a number of patentee-friendly local procedural rules but even more because East Texas juries (relatively uneducated and poor) tended to find for patent plaintiffs and to award them with incredibly outsized damages.

From here on out, a company won't be able to be hauled into court in East Texas just because it sold some products there.

[stessier]

Wow - the hotel chains in that area are going to be falling on hard times.

[Kurth]

Wow - the hotel chains in that area are going to be falling on hard times.

Yep, but the ones that are really going to feel this are, not surprisingly, the lawyers. There are tons of "local counsel" in EDTX that have made their livings on offering an East Texas flavor to defendants and plaintiffs engaged in patent litigation before EDTX judges and juries. It's a cottage industry, and it's largely going to go up in smoke. Good riddance.

[El Guapo]

Won't all the patent trolls just incorporate within the E.D. Tex?

[stessier]

Won't all the patent trolls just incorporate within the E.D. Tex?

The venue is in relation to the accused, not the accuser (if I read it correctly).

[Isgrimnur]

Awesome.

[El Guapo]

Won't all the patent trolls just incorporate within the E.D. Tex?

The venue is in relation to the accused, not the accuser (if I read it correctly).

ah, ok.

[El Guapo]

The sorta interesting part is Thomas joined the Libs with Roberts, Alito, and Kennedy dissenting.

This has to be another sign of the coming apocalypse.

Thomas is fairly extreme (relative to most of the judiciary, anyway) in his jurisprudence, but he is commendably willing to follow the logic of that extreme jurisprudence regardless of the partisanship of the outcome.

[Zarathud]

Assuming you can decipher the logic in the analysis Thomas chooses to use. His jurisprudence seemed to me to come from obscure historical sources.

[pr0ner]

In other SCOTUS news that may only be of interest to patent-law geeks (but should be of interest to everyone), Thomas authored the unanimous opinion in the TC Heartland v. Kraft case, holding:

“The issue in this case is whether [the law] allows a plaintiff to bring a patent infringement lawsuit against a corporation in any district in which the corporation is subject to personal jurisdiction. We conclude that the amendments to §1391 did not modify the meaning of §1400(b) as interpreted by Fourco. We therefore hold that a domestic corporation “resides” only in its State of incorporation for purposes of the patent venue statute.

The reason this is a big deal is because it severely limits the ability of patent plaintiffs -- including non-practicing entities (a/k/a, "Patent Trolls") -- to sue a defendant for patent infringement any where in the country that the defendant sells its products. Prior to this decision, a ridiculous number of patent infringement cases were brought in the otherwise obscure Eastern District of Texas (Marshall, TX and environs). This was because the EDTX had adopted a number of patentee-friendly local procedural rules but even more because East Texas juries (relatively uneducated and poor) tended to find for patent plaintiffs and to award them with incredibly outsized damages.

From here on out, a company won't be able to be hauled into court in East Texas just because it sold some products there.

Some of the "Google controls the patent system" loons on patent blogs I read hate this decision and actually think it'll make patents more difficult to enforce (which is what they claim Google wants). It's kind of hilarious watching them get all upset.

[Defiant]

Supreme Court Printer Cartridge Case Could Be the Citizens United of Products

Earlier this morning the United States Supreme Court issued an opinion in Impression Products, Inc. v. Lexmark International, Inc., a case requiring the Court to revisit the patent exhaustion doctrine. In an opinion authored by Chief Justice John Roberts, and joined by all members of the Court except Justice Ginsburg (concurring in part and dissenting in part) and Justice Gorsuch (taking no part in the case), the Supreme Court determined that when a patent owner sells a product the sale exhausted patent rights in the item being sold regardless of any restrictions the patentee attempts to impose on the location of the sale. In other words, a sale of a patented product exhausts all rights — both domestic and international

link

[El Guapo]

Supreme Court Printer Cartridge Case Could Be the Citizens United of Products

Earlier this morning the United States Supreme Court issued an opinion in Impression Products, Inc. v. Lexmark International, Inc., a case requiring the Court to revisit the patent exhaustion doctrine. In an opinion authored by Chief Justice John Roberts, and joined by all members of the Court except Justice Ginsburg (concurring in part and dissenting in part) and Justice Gorsuch (taking no part in the case), the Supreme Court determined that when a patent owner sells a product the sale exhausted patent rights in the item being sold regardless of any restrictions the patentee attempts to impose on the location of the sale. In other words, a sale of a patented product exhausts all rights — both domestic and international

link

Just to be clear (since this confused me), the first link here is from before the decision was handed down, and the second link is in reference to the actual decision, and the quote in the middle is from the second link (about the actual decision).

Sounds like a solid decision to me. I suspect my IP law friends will be happy.

[Kurth]

Supreme Court Printer Cartridge Case Could Be the Citizens United of Products

Earlier this morning the United States Supreme Court issued an opinion in Impression Products, Inc. v. Lexmark International, Inc., a case requiring the Court to revisit the patent exhaustion doctrine. In an opinion authored by Chief Justice John Roberts, and joined by all members of the Court except Justice Ginsburg (concurring in part and dissenting in part) and Justice Gorsuch (taking no part in the case), the Supreme Court determined that when a patent owner sells a product the sale exhausted patent rights in the item being sold regardless of any restrictions the patentee attempts to impose on the location of the sale. In other words, a sale of a patented product exhausts all rights — both domestic and international

link

Just to be clear (since this confused me), the first link here is from before the decision was handed down, and the second link is in reference to the actual decision, and the quote in the middle is from the second link (about the actual decision).

Sounds like a solid decision to me. I suspect my IP law friends will be happy.

Yes, and no. I haven't read the decision yet, but patent exhaustion/first sale can be a tricky issue.

When it comes to downstream commerce fact patterns, it makes sense that a patentee generally shouldn't be permitted to impose post-sale restrictions on a patented product once it's been sold.

But when it comes to issues of territoriality, I don't think it's always so clear. One scenario this may impact is a patentee's ability to combat grey market goods (goods legally purchased in one territory under certain terms that are then imported into another territory via unauthorized channels) by selling goods with certain resale and geographic restrictions. If companies are no longer able to do that, it could wreak havoc with the complex sales and distribution channels they've set up. Not necessarily a good thing.

[stessier]

But when it comes to issues of territoriality, I don't think it's always so clear. One scenario this may impact is a patentee's ability to combat grey market goods (goods legally purchased in one territory under certain terms that are then imported into another territory via unauthorized channels) by selling goods with certain resale and geographic restrictions. If companies are no longer able to do that, it could wreak havoc with the complex sales and distribution channels they've set up. Not necessarily a good thing.

Not a good thing for the companies, but not necessarily a bad thing for the consumers. From what I can tell, that is exactly what they said too - once it is sold, no matter where, the protection is exhausted and anyone can resell it anywhere. Ginsburg dissented alone on the fact that foreign sales should exhaust the protection.

[pr0ner]

Lee vs. Tam, the disparaging trademark case regarding the band The Slants, was decided by SCOTUS this morning in favor of The Slants. The court held that the disparagement provision in trademark laws is unconstitutional.

While this is a big win for The Slants, it's also a big win for the Washington Redskins, who have seen their own trademarks held to be disparaging in recent years.

[Kurth]

Lee vs. Tam, the disparaging trademark case regarding the band The Slants, was decided by SCOTUS this morning in favor of The Slants. The court held that the disparagement provision in trademark laws is unconstitutional.

While this is a big win for The Slants, it's also a big win for the Washington Redskins, who have seen their own trademarks held to be disparaging in recent years.

Good. And good. The federal government has no business picking winners and losers in the "what's offensive today" sweepstakes. Not the job for the USPTO.

[Captain Caveman]

https://twitter.com/chrislhayes/status/ ... 3530608641