One of the things I would encourage people to do, even if they are not lawyers is to actually read the supreme court opinions for yourself.
Anybody, no matter if you agree or disagree with their political leanings, who actually makes it to the US Supreme Court is crazy smart, and in general a good writer. In addition, they are assisted by really smart clerks. Because of this, their opinions tend to be quite readable and and many times quite entertaining (regardless of your political persuasion, the late Antonin Scalia wrote some memorable opinions).
Democracy really does work best if the average person takes time to learn about their government and the issues. Reading through Supreme Court judgements, concurrences, and dissents, is actually quite accessible and is a very nice summary of the arguments for and against a position, as well as how the judges are intepreting the hundreds of years of jurisprudence and precedents.
In an interview with Scalia asked which was his favorite opinion to have written apart from the legal issues at hand, he brought up Community Nutrition Institute v. Block for its clever opening:
“This case, involving legal requirements for the content and labeling of meat products such as frankfurters, affords a rare opportunity to explore simultaneously both parts of Bismarck’s aphorism that ‘No man should see how laws or sausages are made.’”
I'd add to this - if you're ever in DC and doing the tourist thing (or just have a free day), attending a hearing at the Court can be quite entertaining.
As noted, the justices are wicked smart. The back and forth with the lawyers is great. And the language used is usually comprehendible by non-lawyers.
Same comment applies to Congress, but most hearings aren't nearly as entertaining. But, it's worth it just to see how the sausage is made. And catch a ride on the Senate's private subway.
The legibility of American supreme court rulings is really wonderful and a US national treasure - the democratic value of having judgements be scrutable to citizens probably shouldn't be underestimated. Scalia was in particular an amazing stylist. I remember deciding to check out supreme court proceedings for the UK and finding them absolutely impenetrable in comparison. I wonder if countries with very different legal systems (e.g. France, which doesn't have such an emphasis on common law / legal precedent to my understanding) have more readable/accessible-to-non-professionals judgements/proceedings still.
I think relatively weak Constitutional power of the Supreme Court led to this. The President has control of Military and Law Enforcement. Congress has the power of the purse. The Supreme Court, on the other hand, was relatively weak, until John Marshall and subsequent Justices basically persuaded everyone that it was the final arbiter of what the Constitution said. The Supreme Court’s power ultimately rests on its ability to persuade and thus I think it has developed a culture of trying to to give good reasons for its decisions to the general public.
I agree completely, and I'm not even a US citizen. Nevertheless a lot of decisions made in the US have global reach and I find it useful to have a working knowledge of the US political and legal system. Some of it is bonkers, I have to say, but it has reasons (both good and bad) for being so and often these reasons bubble up to the top in SCOTUS decisions.
See also the Annotated Constitution [1]; which gathers the decisions together with the parts of the constitution the interpret. Immense resource for understanding how our country runs.
> Because of this, their opinions tend to be quite readable and and many times quite entertaining (regardless of your political persuasion, the late Antonin Scalia wrote some memorable opinions).
However they're too often terrible law, because they do mental backflips to support their desired political outcome.
Compare all of the "United States v. Windsor" opinions (both Kennedy's majority decision and the dissents from Scalia, Roberts and Alito) with Posner's decision in Baskin v Bogan + Wolf v Walker a year later.
The former are bad law. Windsor isn't in front of the court because Edith Windsor's injury hasn't been cured in the lower courts, or because the US government is seriously trying to undo that cure. It's politics. She got her money, that was all settled in a lower court much earlier. The US Supreme Court granted certiorari and then a majority cobbled together this vague, murky document solely for a political end. They even pretend not to really notice that the US government's side of the argument is conspicuously not being represented by said government.
But the dissents don't stop at pointing at this ridiculous charade, or even foreshadowing (Scalia talks about "waiting for the other shoe" to drop and sure enough the Obergefell was before that same court only a couple of years later) they offer equally ridiculous rationales for the opposing point of view. Scalia in particular seems ready to bend over backwards to imagine Congress has legitimate purpose in doing things its members explicitly tell the public are for an illegitimate purpose.
In contrast Posner's decision is wonderfully clear. For example, at one point he imagines a hypothetical tax on women (but not men), of just $2, and he says a government ought to show a "compelling reason" for such a tax or else it is discriminatory and must be struck even though $2 is hardly a grave injury - because the discrimination is the problem, not the weight of the tax, and it is the discrimination which must be assessed against any benefit of that discrimination. He explains his intent to examine the cases before him (which both basically go like this: "Gay marriage is illegal in our state because of children") on that basis, and of course on that basis they come up very short indeed.
Like Windsor the cases are on appeal, but the success of state attorneys here would actually have had a material impact, since the decisions they were appealing actually strike state laws that try to exclude gay marriage. Whether you could actually get married in those states depended (to some extent) on Posner's decision.
Based on the actual opinion the title seems completely wrong. The ruling simply makes the decisions of the Patent Trial and Appeal Board (PTAB) reviewable by the agency director. The law was originally written to make the decisions by the PTAB non-reviewable unless the PTAB itself granted review. The Director of the Patent Office could not review and/or reject the decision, only nominate members of the PTAB. Now Smith & Nephew can appeal the decision of the PTAB to the Director of the Patent Office. Then if they don't like that ruling they can appeal to the courts again. In practice it seems unlikely that the director will actually overrule the board but in theory they could.
The principle being that someone must take accountability politically for executive decisions - either the President or a Principal Officer confirmed by the Senate. Anyone else is serving (at some level) under the Principle Officer who can review and/or override the decision. The President can then review the decision of the Principle Officer and/or fire the Principal Officer if necessary. The ultimate check on that power being voters electing the President. There are some nuances but the theory is you don't want the Executive Branch to be issuing unaccountable unreviewable decisions. In practice you might not get a review but there needs to be some kind of process that isn't completely impossible. It also means if there is a major screw up or scandal someone needs to own the ultimate decision. That doesn't always happen but it stops Congress from converting every government department into an opaque unaccountable "board" that continuously makes bad decisions yet there is no one who can be blamed.
In short, the holding by SCOTUS is that the appointment of the "judges" was correct, but the legal provision shielding their decisions from review by the Director of the PTO (or any other Principal Officer confirmed by the Senate) is unconstitutional.
The Constitutional issue is that the Patent Trial and Appeal Board was established without any oversight of their key task: invalidating patents. Their decisions are not subject to review, and they cannot be removed from their appointments as a consequence of any decision that they deliver. They are wielding the power of Principal Officers regarding the rights of the people, but they are appointed through a procedure for Inferior Officers, without confirmation by the Senate. If the IOs were answerable to a PO (i.e., PTO Director or Secretary of Commerce), who is answerable in turn to the President, this exercise would be fine, but they answer to nobody; there is no arrangement for anybody in the Executive Branch to review this Board's decisions.
The Government and another concerned party had argued that the Director had the power to choose which judges sat on any panel, thereby effectively removing "wrong" judges from making decisions, thereby effectively exercising control over the Board. The Federal Circuit held that this arrangement was insufficient, but could be remedied by allowing the Director to formally and completely remove judges from the Board if he took issue with their decisions. The Supreme Court agreed with the Circuit that the arrangement, as specified by law, is unconstitutional, but disagreed with the proposed remedy, preferring instead to merely invalidate the one provision of the law that shields the Board's decisions from review by the Director. SCOTUS vacated the Federal Circuit's decision (the decision that had been appealed to them) and remanded the case (i.e., the actual patent dispute, not the Constitutional issue surrounding it, which they have just resolved) down to the Director of the PTO, whom they have just decided has the authority to review the dispute.
> This is my first time really reading a legal opinion
I enjoy reading SCOTUS opinions. Here are a couple meta things to keep in mind when reading high court opinions.
First, SCOTUS is mostly focused on issues where lower courts have disagreed on a case or issue. The goal is that courts should be consistent because their job is to interpret the law. Juries are (mostly) responsible for interpreting facts. Elected legislatures are responsible for creating the laws.
So, at the SCOTUS level they want to provide clarity about how to interpret fundamental issues of law and the constitution when lower courts interpret things in different ways. They usually are not primarily concerned with the specific outcome of some case. They want to fix potential 'bugs' in the system. In software programming terms, they want to fix problems with the language interpreter or parser, not so much the debug the program. When two supposedly compatible interpreters get different results from the same program code, they want to disambiguate the language rules.
In fact, their opinions sometimes essentially concede, "We don't like the result of correctly interpreting this law (ie "program code") but the interpreter is running correctly. The legislature needs to fix the law. (ie write less ambiguous code)." Obviously, this sometimes clashes with the public's everyday understanding of courts pursuing 'justice.'
A surprising number of laws have ambiguous wording, so it's interesting when I read a SCOTUS case where I hate the net effect of the decision but agree that it's correct. In a sense, writing laws shares much in common with software programming. Sometimes the code isn't doing what the programmer intended but it is running as written, or: bad legislators often blame the courts in the same way bad programmers blame the compiler or CPU.
flyingfences covered this but yes I am sure. The decision is narrowly tailored: the board and the judges' appointments to it are fine, so is the process to make the appointments. That makes the literal headline on the story nonsense.
Interesting. But the whole concept of dissent at this level, makes for less respect for the law.
I am thinking in general, not only on this case.
How is it possible to have the best judges of the land, hear the same case, the same well exposed arguments, challenge counsels on the same points, look at the same base law...AND then come to different conclusions !
What does that say about the system, the laws and most importantly, about the judges and the court ?
It's not surprising if you understand the purpose of the Supreme Court in the US. The SC exists to decide areas of law that are ambiguous or poorly tested. As a result, the only cases that make it to the SC are ones where there isn't a clear decision to be made, because if it were more clear-cut, the decision would have already been made in a lower court.
Exactly, there's almost 100% selection bias in the cases heard by the Court. By definition, the case has already been interpreted differently by different lower courts OR there's a matter of some urgency on the national stage (election challenges being a recent example) OR something else of extreme interest.
The Court is asked to review somewhere around 7000 cases every year. Of those, they hear maybe 150.
Think of the Supreme Court as an error handling routine. Sometimes the program wasn't written for the type of input it is now getting. Sometimes the code has a mistake in it. Sometimes the rules weren't defined specifically enough. Sometimes there are pieces of code that interfere with another piece of code. etc.
We don't put error-handlers in our code because we intended to write bad code. We do it because humans make mistakes and it is helpful to have a way to resolve them. Anyone who says their code doesn't need error-handling because they write perfect code is likely overconfident in their ability.
No descent on rulings within Venezuela's Supreme Tribunal of Justice, so I guess that must be a model of jurisprudence /s
I'm assuming you don't know much about the mechanics of common law. But these cases are not mathematical problems, they involve different theories of legal interpretation, which stray into the philosophical and political sphere of reasoning.
You used both a "False Analogy" in the comparison to Venezuela supreme court, and also a "Courtier's reply" in the second part of your comment. I see no arguments that address my points.
I got downvoted to oblivion, but looked at both your reply, and the previous ones all. All I see is a failure to argue my underlying point.
So I will try again...
That laws and legal scenarios can be ambiguous, contradictory, and imperfect it is only normal. These
are written by humans. But in that case, it should be to the Supreme Court to clarify the ambiguity, contradiction and imperfection of the law itself in a consistent way.
Otherwise its more of a Political Council than a Supreme Court using the word Court to shield political bias under
the disguise of interpretation of the Law.
It looks like instead, some of the dissenting opinions are used to push biased agendas. These after all, we should not forget, politically appointed judges,
( you know ...like in Venezuela... )
Most the arguments in this thread talked about different
analysis, and you mention different philosophical and political views without, it seems, realizing that is after all, at the core of my concerns. The last thing we want to see in a court is judges expanding on their philosophical and political views. Most commentators in this thread seem to indulge the court on taking those liberties under the excuse their are doing "error handling" or interpreting differently the law. They should not be interpreting differently the law, they should be clarifying the ambiguities, identifying the contradictions and referring them back to the legislative branches that can correct them. That is my core point.
It seem to have been missed by many of the commentators here that in many legal jurisdictions dissenting opinions do not exist or are frowned upon. This has NOTHING to do with lack of legal argumentation or discussion
within the courts.
Just to give another example from a different legal perspective:
=========================================================
"Susan Kiefel, Chief Justice of Australia, has expressed concern at the frequency of judicial dissents and the attention given to them by law students and legal commentators. She believes that they should be reserved for only the most important cases, and has described judges who frequently dissent as "somewhat self-indulgent". She further observed that "humorous dissent may provide the author with fleeting popularity, but it may harm the image the public has of the court and its judges".
I also find interesting some of the comments ( I presume from legal scholars ) in this thread, praising the smartness and clairvoyance of the court. Them seem to forget that historically the court:
1) Defined the tomato should be classified as a vegetable
not as a fruit. ( Its a fruit by the way...)
Nix v. Hedden, 149 U.S. 304 (1893)
2) BOWERS v. HARDWICK(1986)
No. 85-140
Upheld a discriminatory Georgia sodomy statute that
criminalized sexually active gay and lesbian
relationships.
3) Did Bush vs Gore in a completely partisan split
531 U. S. ____ (2000) 1(2000)
4) Opened the gates to all SuperPacs....
CITIZENS UNITED v. FEDERAL ELECTION COMMISSION(2010)
No. 08-205
Thanks for expanding and clarifying your comments. I too find much of the U.S. court system troubling; more to the point, the common law itself. The standard catch-phrase in the United States (about government in general and the judiciary in part) is "checks and balances", but those checks and balances often seem quite primitive (most having been designed 100+ years prior to mathematical formalism / rigor). We need checks and balances to be sure, but we also need homeostasis and self-repair; we need a rigorous system of axioms upon which to base logical reasoning; we need a solid philosophical grounding. The very fact that a legal rift exists between so-called Originalism and so-called Living Constitution theory tells me the entire system lacks a formal (rigorous) basis.
Given that the American judiciary grew out of the English colonial judiciary, which in practice looked more towards the whims and largesses of the aristocracy than any principled grounding in (legal, philosophical, or mathematical) form and structure, it does not wholly surprise me.
We do better now than the English colonial judges did, but we can do better still.
It's unfortunate you got downvoted. It's a legit question.
I guess there is a (unrealistic) expectation from "lay" people that the law is clear and easy to decide. That's a lie. The fact is, human society is extremely complicated, and laws are an attempt to codify the various (often conflicting) rules and customs in society. Some lawyers/judges/academics like to pretend that the law is objective and not subject to political/economic reality, and that's kind of an ideal to strive for for the legal profession, but in reality this can't be avoided.
In addition, courts of this level are usually asked to decide the most contentious issues (due to survivor bias - if the outcome is clear, the party expecting to lose most likely won't bother to appeal).
> But the whole concept of dissent at this level, makes for less respect for the law.
Sometimes the majority is wrong. Two important examples are Dred Scott v. Sandford (1857), in which the court held that black Americans could not be U.S. citizens, and Plessey v. Fergusson (1896), which held that laws requiring segregation of white and non-white races were constitutional. Both of those decisions are now considered wrongly-decided at the time. Justice Taney, who wrote the opinion in Dred Scott, will go down in history as a villain. Justice Harlan, who wrote the dissent in Plessy is a hero.
“There is a race so different from our own that we do not permit those belonging to it to become citizens of the United States. Persons belonging to it are, with few exceptions, absolutely excluded from our country. I allude to the Chinese race. But, by the statute in question, a Chinaman can ride in the same passenger coach with white citizens of the United States, while citizens of the black race in Louisiana, many of whom, perhaps, risked their lives for the preservation of the Union, who are entitled, by law, to participate in the political control of the state and nation, who are not excluded, by law or by reason of their race, from public stations of any kind, and who have all the legal rights that belong to white citizens, are yet declared to be criminals, liable to imprisonment, if they ride in a public coach occupied by citizens of the white race.”
This is the portion of his dissent that usually gets cut out when people quote Plessy. Hardly the civil rights hero you allude to.
[1] https://www.supremecourt.gov/opinions/20pdf/19-1434_ancf.pdf