November 6: Who will choose the new faces on the Supreme Court?
Several members of the Supreme Court are approaching retirement, which makes the upcoming presidential election even more important. Justice Ruth Bader Ginsburg is 79 and nearly certain to vacate her seat before 2016. Justices Scalia and Kennedy are both 76, while Justice Breyer is 74. How many of these last three will hang it up over the next four years?
A second Obama administration will bring in a demonstrated liberal to replace Ginsburg, although the flame-out of the nomination of Goodwin Liu to the Ninth Appeals Court in 2010 suggests the White House will try a candidate who is less extreme than Liu. A Romney administration would no doubt nominate a reliable but not radical conservative.
If Obama wins, the balance of power on the Supreme Court will look much the way it does now assuming Ginsberg is the only retiree, while a Romney win would shift things in a way that could be meaningful to life science patents despite the outcome in Prometheus.
Making a forecast becomes dicier if you go beyond Ginsberg. There’s a decent chance Breyer would try to hold out ‘til 2016, especially if Romney wins, but Kennedy and Scalia would have to stick around to the age of 80 to pull that off.
Why is this important? Anyone who thinks the Myriad case will close the book on life science patent law is badly mistaken. Myriad may or may not become something of a template for gene patents, but what then of proteomics? What of the software used in medical devices and electronic health records?
If there’s one thing on which I’d bet everything I have, it’s that we’ve seen only the beginning of life science patent lawsuits here in the 21st Century, and if you think the stent patent wars have been intense, just wait. This isn’t over by a long shot, folks, which makes these Supreme Court retirements – and by extension the election – critical.
Supreme Court and Myriad
Will the Supreme Court agree to hear Myriad at long last? We’ve discussed it before, so there’s no point in rehashing the basics.
Those who assume the Supremes will take a crack at Myriad think the nine justices weren’t impressed with the decision rendered earlier this year by the Court of Appeals for the Federal Circuit, especially given what was widely thought to be an instructive decision in Prometheus. We should also bear in mind that Breyer’s views in Prometheus echoed his dissent in Classen, which include that the Court should not be influenced by the prospect that invalidation of a patent might wipe out an entire industry.
Those in the life sciences will not be encouraged if the case snares a writ of certiorari but for what it’s worth, Chief Justice Roberts won’t try to duck a conflict between Republicans and Democrats in this lawsuit, as he clearly was attempting to in the healthcare reform case.
It’s sometimes tough to predict Kennedy’s vote, but Scalia, Alito and perhaps Thomas can be relied on to at least consider the huge sums invested in these areas, although Thomas’s vote in Wyeth v. Levine might make him seem something of a wild card. Ginsburg, Sotomayor and Kagan are guaranteed to march in lockstep with Breyer.
I wouldn’t bet a nickel on the outcome of a Supreme review of Myriad, but it’s a cinch the courtroom will be packed and a lot of people are going to be outraged at the outcome and call for the Court’s collective neck. Pardon the cliché, but you definitely will want to stay tuned to this one.