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SCOTUS Will Hear Oral Arguments This Week in Patent, Social Security, and Election Cases — What to Know


The Supreme Court of the United States will hear oral arguments in three sets of cases this week. Here is what you need to know about them.

Monday, March 1, United States v. ArthrexSmith & Nephew, Inc. v. Arthrex and Arthrex v. Smith & Nephew, Inc.

These are three patent cases that are not really about patents at all.

The medical industry uses patents to protect everything from medical devices to procedures to vaccines. Sometimes (okay, often), there are disputes over the validity of a particular patent that was issued by the United States Patent and Trademark Office (USPTO). To deal with all of these disputes, Congress created a special board of administrative judges called the Patent and Trial Appeal Board (PTAB).

The USPTO hired hundreds of judges for PTAB. These judges were appointed by the Secretary of Commerce (which is the department under which the USPTO operates as an agency) “in consultation with” the director of the USPTO. It’s this process that ultimately gave rise to the litigation before SCOTUS.

You see, this process of appointing PTAB judges differs substantially from the usual practice of appointing Article III federal judges; typically, judges are appointed by presidents and then confirmed by the Senate.

The abbreviated process used for PTAB judges was challenged in court on the grounds that the Constitution demands that “principal officers” are Senate-approved, while only “inferior officers” may be appointed without such approval. The Court of Appeals for the Federal Circuit agreed that the PTAB judges were indeed “principal officers” who should have been Senate-confirmed.

This ruling, though, created a secondary problem: what happens now to all those cases that were decided by the judges who took the bench without undergoing the proper confirmation process?

The Federal Circuit dealt with that question on two fronts: 1) it eliminated the PTAB judges’ tenure and officially demoted them; and 2) it vacated PTAB’s decision in the specific case before it, and remanded that case to a new panel of PTAB judges.

The Supreme Court will hear oral argument Monday on precisely those two issues.

Deputy Solicitor General Malcolm L. Stewart will argue on behalf of the Department of Justice. Mark A. Perry will argue on behalf of Smith & Nephew, Inc., and Jeffrey A. Lamken will argue on behalf of Arthrex, Inc..

Tuesday, March 2: Brnovich v. Democratic National Committee and Arizona Republican Party v. Democratic National Committee 

This case is something of a leftover from the 2020 presidential election, but could have impact on elections for years to come.

In the litigation, two Arizona voting policies are in question. One is the requirement that a ballot be thrown out if it was cast at the wrong precinct. The other is a law that makes it a felony (punishable with prison time and a six-figure fine) to collect and deliver someone else’s completed ballot (with certain exceptions for family members, caregivers, mail carriers, and election officials). The Democratic National Committee (DNC) argues that Arizona’s practices are discriminatory and violate the Voting Rights Act; a ruling against either or both practices could have widespread effect on voting procedures nationwide.

The DNC challenged these practices back in 2016, and at that time, the district court ruled in favor of Arizona, concluding that both practices were legal. The Court of Appeals for the Ninth Circuit reversed, holding that there was no need that the legislators adopting the practices intended to discriminate in order for those practices to be illegal based on discriminatory effect. Rather, the focus should be on results. If a policy or law disproportionately prevents a racial minority group from effectively participating in elections, that is a sufficient basis for legal challenge.

Looking at Arizona’s practices specifically, the Ninth Circuit ruled that both the out-of-precinct policy and the third-party rules were problematic. Not only did election officials change voters’ polling places “with unusual frequency,” but the correct polling place was sometimes, “located so counterintuitively” that frequent mistakes were easy.

The practice impacted Native Americans, Hispanics and African Americans nearly twice as much as it did whites. Furthermore, 80-percent of Arizona voters voted by mail in 2016, and many—particularly racial minorities — had trouble returning their ballots personally. Given that the minority groups impacted have long suffered racial discrimination, the Ninth Circuit found the voting practices to violate federal law.

Republicans argue that the Ninth Circuit came to the wrong conclusion because it relied on the wrong statistics. They argue that the appellate court should have considered whether the impact on racial minorities was “substantial” in the context of the state’s entire voting system. Given that only 0.15% of all 2016 voters were impacted, the effect was too minor to warrant court intervention.

Michael A. Carvin will argue for the Arizona Republican Party.  Arizona Attorney General Mark Brnovich will argue on his own behalf. Jessica R. Amunson will argue on behalf of Arizona’s Secretary of State. Bruce V. Spiva will argue for the DNC.

Wednesday, March 3: Carr v. Saul and Davis v. Saul

In another set of consolidated cases that’s about the judges, the Court will consider the rules for when a person seeking Social Security benefits can challenge the validity of the judge who conducted the administrative hearing.

John Davis and Willie Carr applied for disability benefits — and a ruling in their consolidated cases could affect many individuals who have done the same. Both were denied benefits after an administrative hearing was conducted. They appealed at another administrative hearing, and lost again. Then they went to the United States Court of Appeals for the Eighth and Tenth Circuits respectively, where they argued that the manner in which the lower judges had been appointed violated the requirements of  the Constitution’s appointments clause. The Eighth and Tenth Circuits ruled against Davis and Carr on the grounds that they should have raised that argument below, and not for the first time in federal court.

SCOTUS will now hear arguments on the narrow issue of whether claimants forfeit judicial review of appointments-clause challenges if they fail to raise those challenges at the administrative level.

Sarah M. Harris will argue on behalf of the petitioners and Assistant to the Solicitor General Austin Raynor will argue on behalf of the DOJ.

[Photo by Samuel Corum/Getty Images]

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Elura is a columnist and trial analyst for Law & Crime. Elura is also a former civil prosecutor for NYC's Administration for Children's Services, the CEO of Lawyer Up, and the author of How To Talk To Your Lawyer and the Legalese-to-English series. Follow Elura on Twitter @elurananos