Some cases cause unpredictable partisan splits at U.S. Supreme Court
The Supreme Court and its membership is often covered and written about along ideological divides in today’s polarized age. But not all cases are in fact decided by a 5-4 split. In fact, most cases are not, and in many cases, Supreme Court justices align with one another in ways that have nothing to do with ideological differences.
Political coverage of the Supreme Court at times emphasizes decisions along ideological divides. But not all cases reflect this divide. One example would be Oil States Energy Services v. Greene's Energy Group—a case heard during the 2017 term questioning whether an administrative tribunal violated Article III of the U.S. Constitution. Neil Gorsuch and John Roberts were the only dissenting voices from an opinion written by Clarence Thomas, which held that the tribunal did not violate Article III. Thomas, in his opinion, was joined by Justices Kennedy, Ginsburg, Breyer, Alito, Sotomayor, and Kagan.
In 2011, Congress created an administrative tribunal within the Patent and Trademark Office (PTO) called the Patent Trial and Appeal Board (PTAB) to hear reviews regarding the validity of existing patents through a process known as inter partes review. After the PTAB invalidated one of its’ patents, Oil States challenged the constitutionality of inter partes review as a means of invalidating existing patents outside of a constitutionally-authorized judicial forum under Article III of the U.S. Constitution. They argued that a patent is a private right and, as such, the PTAB's authority to revoke private rights outside of a jury trial or an Article III court violated the Constitution's protection of private property.
On a 7 - 2 vote, the Supreme Court affirmed the Federal Circuit's ruling that inter partes review did not violate the Constitution. Justice Thomas wrote the majority decision that inter partes review did not violate Article III because it was part of the right to grant patents. He wrote that patents involved public rights, and Congress was within its’ powers to grant the authority to review them to the PTAB. Justice Gorsuch dissented, saying that the inter partes review of patents represented the loss of the right of a petitioner to have such a review heard by an independent judge, rather than by a board created by the executive branch.
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