Without further ado, here is the final installment of my interview with Seth Waxman.
WAXMAN: [Y]our first question was what does the Supreme Court look to in deciding what kinds of cases to take… [T]hey are looking for either a court that has incorrectly decided an unquestionably important issue. The paradigm would be a court has declared an act of Congress unconstitutional. The Supreme Court is going to review that. It may wait until a couple of other circuits have weighed in, but maybe not.
The other paradigm is there’s a split in the circuits. The same legal question with the same set of facts will definitely be decided differently in different jurisdictions. Then the Supreme Court has to step in because that can’t be in a national judicial system.
QUINN: But sometimes they will just decide to take the case on their own, and sometimes they’ll ask for the government’s position.
WAXMAN: Sure. So there are two stages of litigation in the Supreme Court. There’s what’s called the petition stage and the merit stage. This is a phenomenon that doesn’t exist in the Federal Courts of Appeals, which are courts of mandatory jurisdiction. There’s no doubt that if you lose a patent trial you have a right to appeal to the Federal Circuit. You don’t have to come hat in hand begging the Federal Circuit to take your case or making it appear so sexy that they’re smitten and they take it. But the Supreme Court of the United States has very, very little mandatory jurisdiction. It’s almost all discretionary jurisdiction. It gets 10,000 petitions a year and it currently grants review in about 75 cases a year. And so there is a whole level of advocacy that begins with the filing of a petition for a writ of certiorari and then it’s followed by a brief in opposition by the winning party below and then a reply brief. And whatever amicus briefs are filed by friends of the petitioner or the respondent in 10,000 cases in which the court is picking a few for plenary review.
Now, when the United States is a party to a case at the petition stage, either as the petitioner itself or more frequently as the respondent, the United States files a brief or in instances where it’s the respondent it can send a letter to the court waiving a response unless one justice asks it to respond. There are lots of petitions that are so obviously not serve worthy that it’s not necessary for the Solicitor General to explain that to the justices. But the U.S. views are heard in cases in which the U.S. is a party. The U.S. has a long standing practice of almost never filing an amicus brief at the petition stage in a private dispute. Other parties do. And then the Solicitor General doesn’t need consent of anybody in the Supreme Court to file an amicus brief. But the long standing rule has been that the Supreme Court of the United States—when the Supreme Court of the United States feels that it wants the views of the Solicitor General in order to help it, the Supreme Court, decide how to exercise its discretionary jurisdiction it will ask. And the practice is known as CVSG, calling for the views of the Solicitor General, or it is also referred to as the invitation practice. But when a petition is ready for conference, and is conferenced by the court, one option for the court is to issue an order to the Solicitor General which says the Solicitor General is invited to express the views of the United States.
QUINN: Now that’s not really an invitation in the way most people understand it.
WAXMAN: Let’s put it this way. As a practical matter you cannot RSVP your regrets.
QUINN: No, you always accept the invitation. [Laughter]
WAXMAN: It’s an odd thing because it’s styled an order but the text of it is an invitation and in theory there’s no reason why the Solicitor General couldn’t say, I’m sorry but I’ve already committed that evening. You know, I would have loved to come, but I have a long standing prior engagement.
As you point out, a CVSG happens fairly often in the patent area. It generally, a CVSG is generally issued in disputes among private parties where the court or a justice believes that, I mean, there’s some specialized area of knowledge or a body of experience that the federal government or a federal agency may have that could shed light on whether the question really important or whether the court really got it wrong, or whether given the factual posture of the case it’s the right vehicle for deciding a particular legal question. So when there’s some private dispute, they often CVSG it to get the views of the relevant government agencies, or private labor dispute, or a private securities, substantive securities law dispute.
The federal government has great expertise and often huge interests in patent doctrinal questions. Most obviously of the PTO which is an expert agency by definition. And the United States also owns a number of patents and relies on the smooth operation of the patent system. So patent cases that may be where the court is sort of on the fence are a pretty obvious candidate for a CVSG.
Now, in the context of an invitation for an amicus brief at the petition stage, or where the Supreme Court grants cert. in a patent case, perhaps without asking the Solicitor General for its views, it’s very likely that the SG is going to file an amicus brief. If it’s an issue in which the United States has a substantial interest, which is in most, I would say the vast majority of patent cases the U.S. has weighed in. And its views properly are influential with the court. It’s not representing just a private party, it’s representing what is perceived by the Solicitor General to be the long term institutional interest of a democratic government with expertise. And it’s appropriate that the Court give special consideration to the views of the Solicitor General…
[B]ecause the SG’s views are going to be taken very seriously by the Court, there is an obvious interest in both sides of the dispute to try and convince the Solicitor General just as they will ultimately try to convince justices that they are right and that their position should be supported. And you can call this lobbying in the sense that it’s an effort by a private party to convince the government to do something. But it’s not lobbying in the sense that I think most people ascribe to that term. The SG will meet with a party to a case in which it’s going to file or is considering filing an amicus brief. And it will give an equal opportunity to lawyers for the other side if they ask. And it will culminate in a meeting with the Solicitor General’s staff which will also invite all other components of the federal government that have indicated an interest in this issue or this dispute and have previously submitted memos to the Solicitor General about whether to take the case or not and why it’s important or not important and what the correct answer is.
And there will be a meeting in which the advocates for one requesting party get an hour to make their pitch. And this much more resembles a full board moot court than it does a typically lobbying contact. That is this is not just an effort to shake hands, recall old times together, discuss how well the Nats are doing and how horrible the weather is, or even to make some sort of set presentation about what your case is. These are full contact sporting events in which the lawyers from the Solicitor General’s office are asking all sorts of hard questions. A process that helps the advocates prepare to write their brief or argue the case. But is helping the government to decide which side is really more persuasive and more to the point if I side with one particular side or the other what are the weaknesses, what are the things I have to be concerned about. So that is an open and above board practice that is highly meritocratic, it doesn’t have to do with who knows who or who can get a meeting or not get a meeting. This is very, very, very much like an oral argument in a public courtroom.
As you indicated and I agree, what the Solicitor General says is taken very seriously by the Supreme Court. But the Supreme Court by no means always does what the Solicitor General recommends. There have been a number of CVSG invitation briefs where the Solicitor General said, you shouldn’t take the case – interesting question, here’s what we think, but you shouldn’t take this case. Or, not an interesting question, don’t take this case. Sometimes the Supreme Court turns around and takes the case regardless. Sometimes I should hasten to add, I think to its ultimate regret, Metabolite was a perfect example. The Solicitor General said, look, this question is very interesting but it’s not really presented.
QUINN: And that’s finally what they did.
WAXMAN: Yeah, they heard oral argument, said, you know what, the question isn’t presented, it’s like, ah, that’s what we told you. You know, neither the Federal Circuit nor the Supreme Court necessarily does what the Solicitor General urges. I mean, the Solicitor General was on my side in eBay, and I don’t really feel like we lost eBay. But you know, it was a per curiam decision announcing that there was a four factor test which both lower courts realized. But we certainly didn’t come away with a ringing affirmation of the Federal Circuit which the SG had also advocated for. If you look at the two most consequential, I think most consequential substantive patent decisions over the last year, it’s the Federal Circuit’s decision in Myriad and the Supreme Court’s decision in Prometheus v. Mayo. In neither of those cases did the Court do with the Solicitor General was advocating. Now I should hasten to point out that those were two instances in which the Solicitor General was taking a position that was not the position that the PTO or the U.S. government had previously taken with respect to patent subject matter eligibility. And in neither case did the Court agree with the position that the Solicitor General, the new position the Solicitor General was advocating. So one may question what was the cause and effect of the Court’s decision not to follow what the Solicitor General was advocating. But my more general point is while what the SG says is important and viewed as important by the Supreme Court, it is by no, the later is by no means a rubber stamp of the former.
For the remainder of the interview segments please see: