SCOTUS News, Week of December 4th, 2016

A flurry of activity from SCOTUS this week. Let’s get to it.

Death row inmate William Sallie petitioned the Supreme Court for a stay of execution. On this past Tuesday, December 6th, the Supreme Court denied the stay and Sallie was executed. Sallie was convicted of murdering his father-in-law and kidnapping his wife and sister back in 1990. He is the 19th person executed in the US this year, and the 9th in the State of Georgia.

The execution of a second death row inmate, Ronald Bert Smith, was stayed on Thursday so the Justices could review the case. Four Justices vacated the stay. Justices Ginsberg, Breyer, Sotomayor, and Kagan are on the record as supporting the stay of execution.

Argued This Week

– In Bethune-Hill v. Virginia State Board of Elections and McCrory v. Harris the Supreme Court must determine to what extent gerrymandering constitutes race-based discrimination. This issue is literally and figuratively byzantine, and the Justices went back and forth with counsel on both sides. Their main concern was to determine what standard should be used to initiate redistricting, and in what way a redistricting effort should proceed if and when discrimination is determined to have occurred. The ruling is likely to be narrow, and focus on the specifics of the two cases argued. Regardless of the outcome, the decision will help draw the line on how to draw the line.

– In Life Technologies Corp. v. Promega Corp. we have another patent case. The argument phase consisted of a long battle over the meaning of “substantial” as it pertains to a specific clause in the relevant patent law.

“All or a substantial portion of the components of a patented invention.”

An enzyme called taq polymerase is the source of the patent dispute. Life Technologies argued that taq polymerase is a common commodity. Promega argued that this specific version of the enzyme is protected by their patent. Life Technologies is liable for patent infringement unless its argument successfully persuades the Justices that taq polymerase does not constitute “all or a substantial portion of” Promega’s end product. What makes a component “all or a substantial portion of” a patent? Can there be a blanket fraction that applies (e.g. 20% of a product)? The Court will wrestle with this issue in the coming weeks.

– In Czyzewski v. Jevic Holding Corp. the Supreme Court will determine the fate of structured dismissals in bankruptcy cases. The structured dismissal is a quasi-codified alternative to other methods of resolving Chapter 11 cases. In this case, a structured dismissal was considered the best option given the circumstances. Workers at Jevic, however, felt left in the cold by the structured dismissal. A liquidation of assets would have given the workers a settlement, but the structured dismissal gave them nothing. The Court will decide if, in situations when ordinary bankruptcy procedure cannot be observed, that circumstances allow for structured dismissal as the best available alternative.

Opinions Released

Salman v. US. The Supreme Court upheld a Ninth Circuit Court rule that establishes culpability for insider trading. Tippers of trading information are under a duty of trust and confidence with regard to securities information. They cannot use that information for personal advantage. The petitioner argued in the Ninth Circuit that he did not give the tipper any kind of gift for the information he was given. The Ninth Circuit held, and the Supreme Court has now affirmed, that the act of willfully giving out insider information is in and of itself a form of gift. The Supreme Court agreed to hear this case due to the unresolved issues between two different rules governing these kinds of insider trading cases.

State Farm v. US. A unanimous Court ruled in favor of the US and other private respondents (relators). This ruling affirms decisions made by the Second, Ninth, and most relevantly the Fifth Circuit Courts of Appeals relating to rules violations of the False Claims Act. This case is noteworthy in that it establishes a firm balancing test for considering whether someone filing an FCA claim on the behalf of the government has done so in good faith and with appropriate compliance with seal requirements. State Farm tried to have the case dismissed after a seal violation, but the FCA does not outline penalties for seal violations. The Court affirmed lower court interpretations of these and other ambiguities.

{Marshall}+ incorrectly predicted that only Justices Thomas and Alito – two of the most conservative Justices – would vote to affirm. The Algorithm can be forgiven, though. The language of this decision is quite conservative, in fact. That is to say, the Courts of Appeals already completed most of the dirty work. The Supreme Court’s final judgment here is based on the same consistent lines of logic. Justice Kennedy’s opinion for the unanimous Court even at one point delves into a somewhat Scalia-esque deconstruction of the specific wordings and definitions of relevant statutes used in the argumentation.

Samsung v. Apple. Justice Sotomayor wrote for a unanimous Court. They reversed and remanded the case back to the Federal Circuit. Their main concern? Inconsistent definitions of terms used in the suit. The Court whipped out a dictionary in order to dig into the bare bones of Apple’s patent infringement case against Samsung. The media is reporting that Samsung “won” this case, but that’s an oversimplification. There is still a lot left unanswered by this ruling. The Federal Circuit has a bit more to sort out on remand, and the final verdict may not necessarily favor Samsung.



So far this session, both the FantasySCOTUS Crowd and the {Marshall}+ Algorithm have correctly predicted 3 out of 4 decisions. To the chagrin of {Marshall}+, however, when it comes to predicting each individual Justice’s position, meatbags have a slight edge. Marshall has correctly predicted only 20 out of 32 total votes, while the Crowd has 25. This discrepancy may be explained by recognizing that the Supreme Court has granted certiorari to cases they expect to decide unanimously or nearly unanimously. The Algorithm perhaps has difficulty with this decidedly human approach to the problem of an 8-person Court. A deeper analysis, in fact, reveals that the Crowd’s miss and the Algorithm’s miss were both relatively large swings.