The crush of patent lawyers seeking to learn the outcome in Bilski appears to have overwhelmed SCOTUSBlog‘s servers — at least for those who weren’t among the first 6,000 or so to load the post with the CoverItLive plug-in. For the rest of us, here’s what I can tell you:
The Supreme Court holds in McDonald v. Chicago that the Second Amendment is fully applicable to the states through the 14th Amendment. The opinion for the Court is by Justice Alito. All the opinions together are a whopping 214 pages. Justice Alito, joined by the Chief Justice, and Justices Scalia and Kennedy holds that the Second Amendment is incorporated through the Due Process Clause. Justice Thomas concurs separately (in a fifty-plus page opinion) and would hold that the right to keep and bear arms is a privlege of citizenship protected by the 14th Amendment. Justice Stevens dissents alone, and Justice Breyer dissents joined by Justices Ginsburg and Sotomayor. Justice Scalia has a concurring opinion responding to Justice Stevens’ dissent. [UPDATE: Justice Scalia's concurrence is a strongly worded attack on Justice Stevens' concurrence over matters of constitutional interpretation. So much for being nice to the guy on his last day at work. Those who love Scalia opinions will love this one. Those who don't, well . . . ]
In Christian Legal Society v. Martinez, the Court affirms the Ninth Circuit 5-4. Justice Ginsburg writes the majority, siding with the University of California on narrow grounds. Justices Stevens and Kennedy write concurrences. The four conservatives dissent in an opinion by Justice Alito.
In Bilski v. Kappos the Court affirms, rejecting the patent (no surprise there). Justice Kennedy wrote the primary opinion, but the Court is divided on the rationale. Portions of Kennedy’s opinion are only for a plurality (himself, the Chief Justice, and Justices Thomas and Alito). Justice Breyer concurs inthe judgment, joined by Scalia, and Justice Stevens concurs in the judgment, joined by Ginsburg, Breyer, and Sotomayor. The Court does not hold that so-called business method patents are categorically excluded from patent protection under the Federal Patent Act.
In Free Enterprise Fund v. Public Company Accounting Oversight Board, in an opinion by the Chief Justice, the Court reverses the D.C. Circuit, and invalidates the provisions limiting the SEC’s authority to remove members of the PCAOB. The vote is 5-4 along ideological lines. Justice Breyer has a long dissent with thirty-plus pages of appendices.
The Chief Justice’s opinion holds that the double-for-cause removal provisions governing the PCAOB are unconstitutional. In translation: it is unconstitutional to doubly insulate an independent agency (here the PCAOB) from executive control by only allowing for cause removal by another agency (the SEC) that can also only be removed for cause by the Executive. Petitioners, the Court holds, have the right to be regulated by an entity that is sufficiently accountable to the Executive. The Court invalidates this provision, but otherwise upholds the constitutionality of the PCAOB, the method of its appointment, and the rest of Sarbanes-Oxley, and remands the case. So it appears the petitioners won their primary constitutional claim, but this may not have much practical effect, as the PCAOB may continue to operate as it has unless the SEC intervenes.
I’ll have more to say on this opinion, and possibly McDonald, later.