The Volokh Conspiracy
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Justice Kavanaugh Really Wants to Hear More (Patent) Cases
Not all of the justices are happy about the Court's stingy approach to certiorari.
The Supreme Court granted certiorari in a dozen cases Friday, but still has quite a small docket -- smaller than at this point in any of the past decade. While a majority of the Court is presumably happy with this state of affairs (it takes only four justices to grant certiorari), not all of the justices think the Court's dwindling docket is a good thing.
Speaking at the Sixth Circuit Judicial Conference last month, Justice Kavanaugh noted that the Court will struggle to grant 50 cases this term, and expressed the view that the Court could (and should) hear more like 75 cases per term.
Today's Order List from the long conference noted that Justice Kavanaugh would have granted certiorari in one case his colleagues passed on: CareDx, Inc. v. Natera, Inc., a patent case presenting the question "whether a new and useful method for measuring a natural phenomenon, that improves upon prior methods for measuring that very same phenomenon, is eligible for patent protection under Section 101."
This is not the first time Justice Kavanaugh his noted his disagreement with his colleagues refusal to grant certiorari. It's not even the first time he's noted his desire to grant certiorari in a patent case. Last May, an order list noted two other patent cases in which Justice Kavanaugh would have granted certiorari, but his colleagues did not.
I will confess I am not particularly eager for the Court to hear more patent cases, but I agree with Justice Kavanaugh that the Court can and should hear more cases than it does and it would be great if at least three of his colleagues agreed.
