Law Professor Jeffrey Dobbins was on Oregon Public Broadcasting’s daily talk show Think Out Loud to discuss the U.S. Supreme Court vacancy left open by the sudden death of Associate Justice Antonin Scalia and the court’s term that began this week. Dobbins served as a clerk to Senior Associate Justice John Paul Stevens of the Supreme Court from 1995 to 1996.
Dobbins commented on Lee v. Tam, arguing this term, in which Portland-based Asian-American band The Slants is fighting to trademark their name. A 1946 law prevents the trademarking of racial slurs, but the group says they are reclaiming the name as social commentary.
Dobbins said the case involves only the trademarkability of the band’s name and not its use in general.
“The band here is using this name intentionally to try and reclaim this term,” Dobbins said, “but you can imagine a number of other circumstances in which the intent was not so good on the part of the person seeking the trademark.”
Dobbins also talked about Trinity Lutheran v. Pauley, which was granted acceptance to argue in January of 2016, but likely won’t be scheduled until December.
That case involves a church, Trinity Lutheran, suing the state of Missouri after having its application for grant funds rejected. The funds would have been used to replace its daycare playground pebbles with repurposed tire rubber, but state officials said the daycare was ineligible because it was run by a church.
Dobbins said when the case was accepted, Associate Justice Antonin Scalia was still alive, and he would have been interested in the outcome.
“Of course, he died in February,” Dobbins said, “and I think that really changes the outlook on this case.”
President Obama nominated Appeals Court Judge Merrick Garland to fill the vacant seat in March, but Senate Republicans have said they’ll wait until a new president is in office before confirming a nominee. Dobbins said depending on the results of the November election, the Supreme Court may continue as an eight-member court.
Dobbins said that if Hillary Clinton were to win the presidency and the Republicans were to retain control of the Senate, he’s not confident that Clinton’s nominee would be confirmed.
“There is some historical precedent,” said Dobbins. “President Johnson, back during the post Civil War era, didn’t get any Supreme Court nominees because the Republican Senate at that point in time refused to confirm any of them, and the size of the court went from 10 down to seven before anything got straightened out.”
Listen to the whole interview on OPB.org.
About Jeffrey C. Dobbins
Jeffrey C. Dobbins is an associate professor of law and executive director of the Oregon Law Commission at Willamette University College of Law, where he teaches Federal Courts, Administrative Law and seminars in specialized areas of civil procedure. His scholarship focuses on areas of civil procedure and federal jurisdiction, with an emphasis on appellate process and theory. Dobbins practiced law in both public and private sectors before coming to Willamette. Throughout his career, he has briefed and argued more than 50 cases in federal and state appellate courts.
About Willamette University College of Law
Opened in 1883, Willamette University College of Law is the first law school in the Pacific Northwest. The college has a long tradition at the forefront of legal education and is committed to the advancement of knowledge through excellent teaching, scholarship, mentoring and experience. Leading faculty, thriving externship and clinical law programs, ample practical skills courses, and a proactive career placement office prepare Willamette law students for today's legal job market. According to statistics compiled by the American Bar Association, Willamette ranks first in the Pacific Northwest for job placement for full-time, long-term, JD-preferred/JD-required jobs for the class of 2014 and first in Oregon for the classes of 2012, 2013 and 2014. Located across the street from the state capitol complex and the Oregon Supreme Court in downtown Salem, the college specializes in law and government, law and business, and dispute resolution.