Supreme Court

These Were Not the 5-4 SCOTUS Decisions You Were Looking For

The Supreme Court issues three opinions in argued cases that split three different ways.

|

The Supreme Court issued in opinions in three of the five outstanding cases this morning. Each of the three opinions split the Court, but each split the justices in a different way.

First up was Minerva Surgical v. Hologic, concerning the availability of assignor estoppel in patent litigation. Justice Kagan wrote the majority opinion for a 5-4 Court, upholding the availability of assignor estoppel. Her opinion was joined by the Chief Justice and Justices Breyer, Sotomayor and Kavanaugh. Justice Barrett dissented, joined by Justices Thomas and Gorsuch, and Justice Alito authored a solo dissent taking issue with both of the other opinions.

The second released opinion was in an immigration case, Johnson v. Guzman-Chavez. This produced a more traditional, 6-3 liberal-conservative split among the justices, albeit with a little twist. Justice Alito wrote for the Court, joined in full by the Chief Justice and Justices Kavanaugh and Barrett. Justice Thomas concurred in part (all but one footnote of Justice Alito's opinion) and in the judgment, joined by Justice Gorsuch. In the disputed footnote, the Court noted the basis for its jurisdiction, which Thomas disputed. Justice Breyer wrote the dissent.

Third and last today was PennEast Pipeline v. New Jersey, in which the Court upheld a FERC-authorized pipeline company's authority to use eminent domain to condemn rights-of-way across state-owned land. This one produced an odd line-up of justices. Chief Justice Roberts wrote for the 5-4 Court, joined by Justices Breyer, Alito, Sotomayor and Kavanaugh. Justice Thomas wrote one dissent, joined by Justice Gorsuch. Justice Barrett wrote a second dissent, joined by Justices Thomas, Gorsuch, and Kagan.

There are two agued cases remaining to be decided this term: Brnovich v. DNC (the Voting Right Act case out of Arizona) and Americans for Prosperity v. Bonta (the donor disclosure case out of California). These decisions will apparently be released on Thursday, July 1.

Assuming Justice Alito has Brnovich (which many expect), do not be surprised if Justice Barrett has AFP, as she would be the only justice to have written fewer than six signed majority opinions this term. Justice Alito has written five majority opinions to date and Justice Barrett has written only four. All of the other justices have written six majority opinions in argued cases, except for Justice Thomas, who has written seven.

NEXT: Democrats Learn to Love the Congressional Review Act (At Least a Little Bit)

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  1. With all the weird lineups, and some likely vote-switching in cases such as Fulton, I am not sure simple opinion-counting is a great way to forecast the final two. I am going with the Chief in Brnovich which will feature another weird lineup (maybe Alito lost the majority again), and then Kagan on AFP, with another weird lineup. Counterintuitive, but the whole term has been.

  2. I’m torn on Minerva Surgical v. Hologic. I think the majority has the correct outcome. but I think Alito has the correct argument.

    Dump Westinghouse, dump all assignor estoppel, and force Congress to deal with it.

    Lacking that, I’m glad this case was sent back to be re-argued

    1. My thinking is basically, this all should be resolved by contract ahead of time. That way, you just read the contract you sign when doing this licensing deal, and everyone knows what is expected of them.

      And if the contract process is abusive in some aspects, which it can be (though I doubt it’s an issue here) then Congress can set the ground rules and everything is pursuant to that.

      I understand stare decisis, but not if it makes the rules more confusing and less predictable than it was before. Which is sort of whats going on here. A party who signed a contract basically says, but wait I found some 30 year old case that overrules this and its really not good. See Kimble.

      The court shouldn’t be in a position where it decides what is fair or not fair in the market. They arent economists. And we aren’t discussing interesting genuine conflicts between say patent law and antitrust we are discussing decades old minor rules that are dumb and almost everyone agrees are dumb.

      1. “all should be resolved by contract ahead of time”

        Only lawyers are conceited enough to think a contract can resolve all future disputes.

        Essentially as I read the facts, one party (Hologic) re-wrote a patent, possibly making it too broad. The other party (Minerva), the original inventor, thought up something probably not envisioned by the original patent.

        The SC split the proverbial baby: Said the law was right (upholding assignor estoppel), but that it was misapplied, or worse for Hologic, may not apply at all in this case, giving Minerva another shot. Everybody wins!

      2. “That way, you just read the contract you sign when doing this licensing deal, and everyone knows what is expected of them. And if the contract process is abusive in some aspects, which it can be (though I doubt it’s an issue here) then Congress can set the ground rules and everything is pursuant to that.”

        This is exactly the situation that led to the system of assignor estoppel though and the situation at hand.

        This licensing deal was the inventor assigning the license to his own company, which was then acquired. It is extremely common for an inventor to assign a patent application to their company (or their employer). In many cases, it’s almost mandatory.

        The “abuse” here was the company that took over expanding the patent claims.

        1. Hologic filed a continuation claim materially and impermissibly broadening the patent claim. The original patent was for a “moisture-permeable applicator head” and the new invention, which was granted a patent btw, was for “moisture-impermeable applicator head.

          I have no opinion on assignor estoppel, but I do have an opinion on contracts. If I sell you X, you get X. Not X+.01

  3. “concerning the availability of assignor estoppel in patent litigation”

    I’ll just wait for the Netflix series on this one.

    1. But Rev, only right wing, bigoted, backwards, retrograde conservatives wait for the Netflix series….

      The smart, intelligent, forwards, progressive, social betters educate themselves by self-researching the history of assignor estoppel, why it’s important, and what it means.

  4. Ooof. . . PennEast Pipeline v. New Jersey is a hard swallow.

    Delegating eminent domain to a private company. . . .

    . . .that does not sit well.

    1. From the decision.

      By its terms, §717f(h) authorizes FERC (Federal Energy Regulatory Commission) certificate holders to condemn all necessary rightsof-way, whether owned by private parties or States. Such condemnation actions do not offend state sovereignty, because the States consented at the founding to the exercise of the federal eminent domain power, whether by public officials or private delegatees.

      Wow. I’m in disbelief.

      1. The general point is that the federal government has the authority to delegate its power to private parties. This was always true. For example, laws were commonly enforced in the 18th century by deputizing individuals, instead of there being a national police force.

        If the federal government can seize property from states without offending state soverign immunity, why can’t the people the federal government delegates its power to?

        And this isn’t a random delegation of power either, the government isn’t saying well, anyone can now sue states. The gas companies pick a set of properties, and the government reviews it and gives a specific delegation to get that set. Everyone agrees the feds can take it. So why can’t the feds ask someone else to do it?

        I admit, the way it is worded in the majority seems … off. Emmient domain is not, or shouldn’t be, an exception to traditional state soverign immunity rules, and wording to the contrary is unfortunate. That being said, I dont think the majority is wrong.

        1. “Emmient domain is not, or shouldn’t be, an exception to traditional state sovereign immunity rules”

          I think that you answered your own question. If the Feds can use eminent domain against the states directly, then states do not have sovereign immunity in the case that the Feds need to sue to obtain the property. That is, everyone on the court seems to agree that the Feds can use eminent domain against states and can take a state to court to get property. So, eminent domain appears to be in fact an exception to normal sovereign immunity when the Feds are doing the taking

          I think the dissent is a bunch of hyper technical gobbledygook.

          Now I think that “can the Federal government exercise eminent domain against the states” to be an interesting one. For example, why do we need a particular carve out for D.C. in the constitution when the Federal govt in 1791 could have simply exercised eminent domain? Maybe the Feds didn’t have the power, or maybe no one wanted an adverse ruling from a nascent judiciary, so they brokered a pre-lawsuit settlement.

          While its an interesting question, the answer seems to have been answered in the affirmative far too long ago, and I was not persuaded in the slightest by the dissent.

        2. “federal government has the authority to delegate its power to private parties. This was always true. For example, laws were commonly enforced in the 18th century by deputizing individuals”

          -I view deputizing as more of a temporary conscription, rather than a delegation of authority

          “If the federal government can seize property from states without offending state soverign immunity, why can’t the people the federal government delegates its power to?”

          Well….delegation is an interesting question. Can (or should) the state delegate its power to private corporations? Can it legally delegate its war-making power for example? “The United States hereby delegates it’s war making authority to Blackwater International. They have the authority to declare war and use their own forces in the name of the United States, where and whenever they choose”

          That sort of open ended delegation leaves people uneasy. There’s a certain school of thought that some government powers shouldn’t be able to be delegated to private corporations. That the government should need to retain control of them itself, and use them itself.

      2. And I think had the law been, anyone can now hold emmient domain proceedings against states, that would probably be unconstitutional.

    2. Why? Both states and the federal government have always done this. Heck, the Federal government at the time of the founding also delegated privateering, to private companies (https://en.wikipedia.org/wiki/Letter_of_marque). A letter of Marque is more or less the equivalent of the modern Blackwater. The IRS assigns tax debt to private debt collectors too.

      War, taxes, eminent domain… If the Federal Govt has the power, they can delegate it through legislation. What is the limiting principle of the governments’ ability to delegate power, really?

      I don’t find the dissent persuasive at all. If FERC can use eminent domain to take over state property, then assign the property to PennEast, a proposition that seems to get 9-0 vote, then there is nothing unconstitutional about delegating the power to PennEast directly. The dissent is hyper technical and does not make a good case at all.

      1. To give a rough example, federal government employees are also “individuals.” They are people. Does the 11th amendment apply to them? They use federal power is what makes them federal officers. Same principle here.

        1. An example so rough I cant even see the outlines of what you mean.

        2. They are employees of the federal government, subject to its control, with decisions subject to review, and can be hired and fired generally at will.

      2. 1. The IRS assigns tax debt to private debt collectors too.
        -This is a contract service. There is no delegated authority here. The private debt collection is told to do something, and they do it.

        2. A letter of Marque
        -This is more open ended, but hasn’t been used in more than 150 years. A legacy of an older time.

        Current military contractors are sharply limited in their authority. They cannot declare war. Cannot engage in “their own” missions. They do what they are told to do, within the confines of the contract.

    3. Pipelines, utilities etc have always had the right to condemn. Generally there are conditions as to the asset’s use that insure that the asset truly serves a public purpose, but as long as they comply with those they can “take” private land.

      I think this decision just expands it to public lands as well.

    4. It’s not a blanket delegation. If the US Government reviews and approves a specific project, it seems reasonable to me to delegate the process of eminent domain to the entity entrusted with the project.

      It’s not the same as granting blanket eminent domain power to a private company.

  5. I learned something new today: Assignor estoppel (and Grantor estoppel, from wikipedia).

    To my IANAL mind, both seem like perjury. When you sell a patent, you sell with the implication that you believe it to be valid, and with the promise that you will back it as best you can. Seems to me sort of like selling a house, then turning around and claiming the deed is invalid.

    But I have a real question: what if you don’t do anything blatant to attack what you sold, but merely back it up so poorly as to undermine its validity. Or what if you left out some crucial details before the sale, then tell the opposition, anonymously, and they use that to attack the patent or deed or whatever, and you claim you had forgotten about it before the sale?

    Does this ever happen and get prosecuted, whether as perjury or something else?

    1. Why do you think “perjury” is?

      1. If you mean “what do I think perjury is”, IANAL and my personal definition is lying about something which you have set yourself up as an expert on, whether by swearing in court, signing a contract, “I approve this message”, or anything else, and yes, I know that is not the legal definition.

        If you mean “why do I think perjury applies”, well, I don’t know what else to say.

  6. in penneast, thomas joins gorsuch, not vice versa, i think.

Please to post comments