8 July—In the 30 June disquisition SCOTUS does it well, elated by the U.S. Supreme Court’s most controversial entirely correct decisions that were as usual issued at the end of June, I opined that it had “done pretty damn well so far this term.” Pretty damn well certainly, but the Supremes really had screwed up in a very important decision issued at the beginning of June, which, however, received very little publicity.

The dreadful, painful decision was delivered on 8 June in Docket No. 22-148, Jack Daniel’s Properties, Inc. v. VIP Products LLC. I had written about the case on 16 March in Spaniels v. Daniel’s, expecting it to be a slam-dunk for VIP Products. Boy, was I wrong.

To make the unbelievable SCOTUS decision against the dog toy manufacturer even more depressing, it was unanimous, one of only 29 percent of the term’s 58 decisions in which all nine justices agreed. In this outrageous miscarriage of justice that stifles creativity to the benefit of the deepest pockets, the Supremes decided in essence that a dog toy could be mistaken for a booze bottle. Even by a teetotaler.

The opinion was written by Justice Kagan, whose cutesy hook was, “This case is about dog toys and whiskey, two items seldom appearing in the same sentence.” Then it reverses the Ninth Circuit’s opinion, which had reversed the trial court, by ruling that, in simple terms, a parody is always exempt from fair-use limits established by Congress.

Not always, say the Supremes. In brief concurring opinions, Thomas and Barrett joined Gorsuch in one; and—wait for it—Alito joined Sotomayor in another.

I ended the 16 March disquisition: “The whole Spaniels v. Daniel’s affair seems cut and dried to me in all respects. But I’m not a highly paid lawyer. And there are various aspects of the case—fair use and parody, for two—that could do with further clarification and fortification by the Supremes. But is this SCOTUS the one to do it?”

Well, sad to say, this SCOTUS certainly did it . . .