Friday, June 23, 2006

Is the Supreme Court Broken?

Yesterday, the Supreme Court dismissed as improvidently granted ("DIG'd"), the writ of certiorari in Laboratory Corp. of America Holdings v. Metabolite, over a 15 page dissent by Justices Breyer, Stevens and Souter. Chief Justice Roberts did not participate. For those interested in the procedure and its use, here is a link to a 59 page study by Professors Michael Solimine and Rafael Gely of the University of Cincinnati College of Law entitled "The Supreme Court and the DIG: An Empirical and Institutional Analysis," also published in 2005 Wisc. L. Rev. 1421.

The Metabolite case had been closely watched and was to determine whether the patent claimed "a monopoly over a basic scientific relationship." The Solictor General had advised the Court not to grant the writ in the first place, but the Court rejected the advice. The case was then fully briefed, argued, and ditched without explanation. As Justice Breyer pointed out, in addition to the parties' briefs and a comprehensive record, the Government submitted briefs as did 20 amici. The issues were important (beyond whether high homocysteine levels suggest vitamin B-12 deficiencies), and hearken back to the scope of Diamond's loose language about being able to patent "everything under the sun." Having rejected the SG's advice not to take the case, to ditch it after making everyone go through with it seems particularly unseemly and very unfair to the parties.

Two things disturb me about the Court's action in this and other cases; first, there is what I perceive to a pattern of taking important intellectual property issues and then dodging them. This occurred in software (Lotus v. Borland, affirmed 4 to 4 a week after oral argument); Grokster, where I view the 9-0 majority as a phony facade and a failure to reach the issues actually presented; eBay, handed down this year with another phony 9-0 opinion and two concurrences that cut the legs out from under the "Court's" opinion; and now Metabolite, DIG'd.

Things could have been worse, though, the Court might have actually decided Metabolite and the other cases, and that is indeed a sad comment on the state of the Court: when you don't know what is worse, when they decide a case or when they don't. There were those who hoped that Chief Justice Roberts might be able to produce a less fractured way of working. One could say he hasn't had enough time (and he didn't participate in Metabolite), but he himself was responsible for cutting the legs out from under the Court's decision in Ebay with his concurring opinion, so I am not holding my breath.


Anonymous said...

When I read the briefs, I wondered what they were thinking when they granted cert. It's clear that subject matter patentability was not raised in the district court. Granted, it's a legal issue, and they have jurisdiction, but still....

It only takes 4 votes to grant cert, but we had a couple of replacements on the court last summer, and as the dissent suggests, there were only 3 votes left for hearing the case.

William Patry said...

Here's how it would line up under John Noble's theory. The vote to grant cert. was provided by Breyer, Stevens, Souter, as well as O'Connor or Rehnquist or both. Renhquist is replaced by Roberts who doesn't participate. O'Connor is replaced by Alito who thinks they shouldn't have taken the case as do Scalia, Ginsburg, Thomas, and Kennedy.

Anonymous said...

Professor, I will second your ambivalence. As much as the current scheme annoys me, after Grokster and eBay, I have no faith at all that the cure would not be worse than the disease.