“At some point, science, logic and intellectual honesty need to matter at the Supreme Court. The alternative, which has been uncomfortably on display for all to see – at least in the patent sphere for the last generation – is that Justices deem themselves infallible experts on every topic.”
Is the Supreme Court competent to handle issues dealing with technology? The question is often discussed in private among patent attorneys who find themselves completely befuddled by the wanton disregard and open duplicitous handling of patent laws by the Nation’s High Court. In one decision, the Supreme Court will wax poetically about the need to adhere to precedent, and citing stare decisis, and then overrule well-established, 30-year-old Supreme Court precedent. The whim and fancy – and intellectual dishonesty – of the Supreme Court knows no bounds when it comes to patent law.
But now, just how little at least some of the Justices know about basic science – and logic — has become glaringly and unmistakably obvious to everyone, thanks to the recent oral argument held regarding vaccine mandates. So, for those who have been hoping that the Supreme Court might eventually step in and fix the patent eligibility mess that they invented, and the Federal Circuit magnified, you can put those hopes on hold.
Whether you are for or against vaccine mandates doesn’t matter. At some point, science, logic and intellectual honesty need to matter at the Supreme Court. The alternative, which has been uncomfortably on display for all to see – at least in the patent sphere for the last generation – is that Justices deem themselves infallible experts on every topic and/or the Court has become a policy tribunal untethered by the rule of law as written.
Some Truly Scary Questions
Still, everyone, regardless of party affiliation or vaccine philosophy, should be able to agree that the performance of Justice Breyer last week calls into question whether he remains fit for service. During oral arguments, Justice Breyer asked in a truly befuddled way why there would be any question about mandating vaccines because if COVID vaccines were mandated, the number of people contracting COVID would go from 750,000 today to zero tomorrow. Breyer explained:
[M]aybe I’m wrong, and please tell me if I am, but the numbers I read is when they issued this order, there were approximately 70-something thousand new cases every day. And yesterday there were close to 750,000.
So if we delay it a day, and if it were to have effect, then 750,000 more people will have COVID who otherwise, if we didn’t delay it, wouldn’t have? I mean, I – I don’t doubt the power of the Court to issue a stay. I’m just saying what are the consequences of that?
And if I’m wrong, you better tell me I’m wrong because I – I thought that it really did make a difference to people who might get – you have the numbers. I saw the numbers.
Well, all right, what – so what – what do you say? Now you say does not – that’s really not a problem?
There is so much wrong with what Justice Breyer said, it is almost understandable why no one corrected Justice Breyer, who came across like a doddering old man wholly incapable of comprehending even the most basic concepts surrounding vaccine technology and deployment. You might expect the advocates before the Supreme Court to tell Justice Breyer he was wrong. Nevertheless, a reasonable advocate would have and should have said something.
Unfortunately, Supreme Court advocates are often unwilling to actually advocate. So, no one actually told Justice Breyer he was wrong. What is the point of appearing before a court on any level as an advocate if you will not point out where and when the judge or Justice is mistaken? But that is what passes for Supreme Court advocacy for the most part; attorneys fearful of being ostracized for advocating and explaining when the Justice is about to make an enormous mistake.
With respect to the substance of Breyer’s comment/question, there is almost no appropriate place to start to unpack the nonsense. It seemed prior to these oral arguments that virtually everyone had become familiar with the fact that those who have been vaccinated can and do still get sick with the virus, and those who have been vaccinated can and do still transmit the virus. “[V]accinated people – whether they have symptoms or not – are contracting and spreading the virus in nontrivial numbers,” wrote the Scientific American in December, and it has seemed common knowledge for many months, with the CDC acknowledging these truths at least by September 2021, relating to the Delta variant.
But even if Breyer were living in a cave, and literally none of the written submissions in the case pointed out these critical scientific truths, it would be an impossible task for any vaccine, even a vaccine with near 100% efficacy (i.e., protecting those who receive the vaccine as well as preventing transmission) to cause a 100% reduction in the number of cases over the span of 24 hours. And that is even if the mandate were to apply to all 330+ million American citizens and residents, which is not the case. The mandates in question would apply to roughly 100 million workers, according to NPR. How or why Justice Breyer thinks a mandate that would apply to less than one-third of America would result in COVID being eradicated in a single day is unclear.
Alas, Justice Breyer wasn’t the only member of the Supreme Court challenged by science. Justice Sotomayor somehow came up with a clearly erroneous figure for the number of children sick with COVID. She said:
We have hospitals that are almost at full capacity with people severely ill on ventilators. We have over 100,000 children, which we’ve never had before, in – in serious condition and many on ventilators.
“That’s wildly incorrect,” wrote the Washington Post, who gave Justice Sotomayor four Pinocchios for a claim they call “absurdly high.” According to the Washington Post only 5,000 children were in the hospital with confirmed or suspected COVID as of January 8. According to an interview with CDC Director Rochelle Walensky several days after the Supreme Court oral argument, the number of hospitalized children with COVID is 3,500.
Whether Sotomayor is off by a factor of 20 or 30, the question of how many hospitalized children are in serious condition is not known. Neither is the number of children in the hospital “with COVID” versus the number of children in the hospital “because of COVID.” Indeed, data from around the country suggests that between one-third to one-half of those “with COVID” are admitted for reasons other than COVID and then subsequently test positive. See New York (Daily Mail reporting), Colorado (KDVR reporting), Austin, Texas (NBC News reporting), Florida (Business Insider reporting). Obviously, this is not to say that the issue of children with COVID should be ignored, but it should be self-evident why it is critically important for Justices to rely on actual fact, rather than mythology, when making a decision.
Good Luck, All
After hearing these truly uninformed, rather scary questions, a friend who is not an attorney asked: “Doesn’t the Supreme Court have access to experts? Will someone correct them?”
The answer to the first question is yes, all the facts and truth will be in the filings submitted to the Court; whether they pay attention to that data is another question entirely in an era where the Supreme Court seems uniquely interested in policy and legislating rather than interpreting the law.
The answer to the second question is more disturbing. Only Congress can correct the Supreme Court, which has happened with Congress passing legislation specifically overruling the Supreme Court a number of times throughout America’s 230-year history. But aside from an Act of Congress, the Supreme Court will do whatever they want to do, and if that means getting science wrong, or making up facts, well, that is something you get used to as a patent attorney.
Let’s not forget that the Supreme Court actually ruled that a pH of 5 is equivalent to a pH of 6. Of course, pH is logarithmic, which means that a pH of 5 is 10 times more acidic than a pH of 6. So, while 5 and 6 are close when counting on Sesame Street, they are not at all close when dealing with pH. But then again, the Supreme Court also found magnesium and manganese to be equivalents, and they found that isolated DNA just randomly exists in nature without the assistance of human activity to isolate the DNA. So, this group of jurists are not exactly known for scientific accuracy when it comes to decision-making, even when advocates might be willing to point out that the understanding of Justices is four Pinocchios wrong, or just plain incoherent.
So, good luck to everyone hoping that the Supreme Court takes the American Axle case and rectifies the gross miscarriage of justice of the Federal Circuit. But frankly, the best thing would be for the Supreme Court to simply ignore the case. One can only imagine that this band of scientific heavyweights might think Hooke’s law has something to do with Captain Hook and start asking questions about Peter Pan!