The Volokh Conspiracy
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Justice Kavanaugh Still Wants to Hear More Cases (Revised)
Justice Kavanaugh continues to support granting certiorari in cases his colleagues do not wish to hear.
This morning's Supreme Court Order List noted that the Court has granted certiorari in two cases (Carnahan v. Maloney and Brown v. U.S./Jackson v. U.S. combined) and noted jurisdiction in a third (Alexander v. South Carolina State Conference of the NAACP). The Court also denied certiorari in several dozen more.
One case in which the Court denied certiorari was Teva Pharmaceuticals USA v. GlaxoSmithKline LLC, which presented the question: "If a generic drug's FDA-approved label carves out all of the language that the brand manufacturer has identified as covering its patented uses, can the generic manufacturer be held liable on a theory that its label still intentionally encourages infringement of those carved-out uses?" The Order List notes that Justice Kavanaugh would have granted certiorari in this case.
The Order List further indicates that Justice Kavanaugh would have granted certiorari in two other patent law cases, Tropp v. Travel Sentry and Interactive Wearables v. Polar Electro Oy. As neither of these cases attracted significant amicus support, it suggests that Justice Kavanaugh is looking at cert petitions quite closely. It is also interesting that all three of these cases involved the Federal Circuit Court of Appeals. The Federal Circuit has exclusive jurisdiction in patent cases, so justices cannot rely upon whether there is a circuit split when deciding whether to grant certiorari.
This is not the first time Justice Kavanaugh has publicly noted his desire to hear cases in which his colleagues had little interest. As I noted last month, there have been at least two other instances in which Justice Kavanaugh dissented from the denial of certiorari this term.
[Note: This point has been revised to note the two additional cases in which Justice Kavanaugh indicated his desire to grant certiorari.]