The crush of patent lawyers seeking to learn the outcome in Bilski appears to have overwhelmed SCOTUSBlog‘s servers — at least for those who weren’t among the first 6,000 or so to load the post with the CoverItLive plug-in. For the rest of us, here’s what I can tell you:
The Supreme Court holds in McDonald v. Chicago that the Second Amendment is fully applicable to the states through the 14th Amendment. The opinion for the Court is by Justice Alito. All the opinions together are a whopping 214 pages. Justice Alito, joined by the Chief Justice, and Justices Scalia and Kennedy holds that the Second Amendment is incorporated through the Due Process Clause. Justice Thomas concurs separately (in a fifty-plus page opinion) and would hold that the right to keep and bear arms is a privlege of citizenship protected by the 14th Amendment. Justice Stevens dissents alone, and Justice Breyer dissents joined by Justices Ginsburg and Sotomayor. Justice Scalia has a concurring opinion responding to Justice Stevens’ dissent. [UPDATE: Justice Scalia's concurrence is a strongly worded attack on Justice Stevens' concurrence over matters of constitutional interpretation. So much for being nice to the guy on his last day at work. Those who love Scalia opinions will love this one. Those who don't, well . . . ]
[For those having trouble accessing the SCOTUSBLog live blog, try this alternate link (provided by a commenter below). Once available, all of the Court's opinions will be posted here.]
In Christian Legal Society v. Martinez, the Court affirms the Ninth Circuit 5-4. Justice Ginsburg writes the majority, siding with the University of California on narrow grounds. Justices Stevens and Kennedy write concurrences. The four conservatives dissent in an opinion by Justice Alito.
In Bilski v. Kappos the Court affirms, rejecting the patent (no surprise there). Justice Kennedy wrote the primary opinion, but the Court is divided on the rationale. Portions of Kennedy’s opinion are only for a plurality (himself, the Chief Justice, and Justices Thomas and Alito). Justice Breyer concurs inthe judgment, joined by Scalia, and Justice Stevens concurs in the judgment, joined by Ginsburg, Breyer, and Sotomayor. The Court does not hold that so-called business method patents are categorically excluded from patent protection under the Federal Patent Act.
In Free Enterprise Fund v. Public Company Accounting Oversight Board, in an opinion by the Chief Justice, the Court reverses the D.C. Circuit, and invalidates the provisions limiting the SEC’s authority to remove members of the PCAOB. The vote is 5-4 along ideological lines. Justice Breyer has a long dissent with thirty-plus pages of appendices.
The Chief Justice’s opinion holds that the double-for-cause removal provisions governing the PCAOB are unconstitutional. In translation: it is unconstitutional to doubly insulate an independent agency (here the PCAOB) from executive control by only allowing for cause removal by another agency (the SEC) that can also only be removed for cause by the Executive. Petitioners, the Court holds, have the right to be regulated by an entity that is sufficiently accountable to the Executive. The Court invalidates this provision, but otherwise upholds the constitutionality of the PCAOB, the method of its appointment, and the rest of Sarbanes-Oxley, and remands the case. So it appears the petitioners won their primary constitutional claim, but this may not have much practical effect, as the PCAOB may continue to operate as it has unless the SEC intervenes.
I’ll have more to say on this opinion, and possibly McDonald, later.
i.cabbage says:
Clarence Thomas FTW!
June 28, 2010, 10:18 amBZ says:
And the Court granted cert in Chamber of Commerce v Candelaria, 09-115, which has been blogged about here before. This is the case involving the Arizona Legal Workers Act, revoking business licenses for businesses which hire illegal immigrants, NOT the more recent and controversial Arizona law. The central question is pre-emption of state immigration-related legislation, which is the same legal issue in both laws, however, so there is a relationship. There is also a secondary question of whether employers can be required to use the federal government’s electronic verification system to determine if job applicants are eligible to work in the U.S.
June 28, 2010, 10:22 amAnonymous comment says:
Alternate link to LiveBlog: http://www.coveritlive.com/index2.php/option=com_altcaster/task=viewaltcast/altcast_code=1cd2606684/height=550/width=470
June 28, 2010, 10:23 amAllan Walstad says:
Leave it to Thomas to have the guts to enforce the Constitution, plain and simple.
June 28, 2010, 10:33 amJeff the Baptist says:
The current survey of liveblog viewers has McDonald beating Bilski by 2-1 for the reason why people are showing up.
June 28, 2010, 10:38 amMark N. says:
Sounds like the conservatives won on Bilski— 5-4 holding that business methods are patentable.
June 28, 2010, 10:48 amQuantum Mechanic says:
Given the length of Stevens’s Bilski concurrence, do you think he was originally assigned the decision and lost his majority?
June 28, 2010, 11:18 amPatent Lawyer says:
Mark N.-
When did business method patents become a partisan issue? The partisan split on Bilski is kind of weird, but I’m not aware of when “People should be able to claim a patent monopoly on business methods” got added to the GOP platform.
June 28, 2010, 11:33 amMark N. says:
I don’t think there’s an inherent reason it has to be partisan, but I think the partisan split goes beyond the particular court lineup. Amici, for example, line up as something like: civil-liberties groups and tech companies (in favor of restricting patent scope) v. large, non-tech corporations (in favor of expanding it). It’s not purely partisan, but there’s certainly a partisan tone in a lineup of: ACLU, EFF, and IBM versus Accenture, American Express, and Conoco-Phillips.
My impression is that it’s more broadly something of a fight over where the boundaries should be between an open commons of ideas versus an intellectual-property model of ideas, with more liberal groups favoring a more expansive commons, and big-business groups (except tech companies) favoring more ownership.
June 28, 2010, 12:30 pmEMB says:
If so, it seems likely that Scalia was the vote that swung the other way (given that he joined Breyer and didn’t support parts of the majority opinion).
June 28, 2010, 2:43 pmSo, McDonald v. City of Chicago | Little Miss Attila says:
[...] Adler, at the Volokhs’ treehouse: The Supreme Court holds in McDonald v. Chicago that the Second Amendment is fully applicable to [...]
June 28, 2010, 3:22 pmSCOTUSblog » Special-edition round-up: today’s opinions says:
[...] Ginsburg, the husband of Justice Ruth Bader Ginsburg. USA Today, Newsweek, WSJ Law Blog, and the Volokh Conspiracy all have round-ups of this momentous day. In a special evening edition of the round-up, we have [...]
June 28, 2010, 10:48 pm