Is the new economy driving the Court’s docket?
The decline in the Court’s merits docket is of course old news to SCOTUSblog readers, from about 150 cases a year at the dawn of the Rehnquist Court to about half that in the recent years of the Roberts Court. And of course, the rapid decline in the last few years is also noteworthy — from 84 in OT2010 to 75 last year to only 48 cases granted so far for OT2012.
What might not be quite so obvious is the relative rise of intellectual property cases on the Court’s docket. A recent lengthy piece in the New York Times emphasized the role that patent litigation has played in a variety of “new-economy” sectors. What we can observe from the Court’s docket is that the number of intellectual property cases has been increasing in recent decades, even as the Court’s docket has shrunk. To be sure, the number of cases is so small that it is difficult without looking at the numbers over a long period of time to be sure that these numbers represent real long-term trends. Still, the presence of four core IP cases among the 48 grants to date for OT2012 (Kirtsaeng v. John Wiley & Sons, Already LLC v. Nike, Bowman v. Monsanto Co., and Gunn v. Minton), 8% of the argument calendar, is remarkable. For comparison, I count 5% IP cases in OT2011 (4/75) and 6% in OT 2010 (5/84). To get a sense for longer trends, ten years ago the Court decided 3 IP cases out of 73 opinions (4%) and twenty years ago only 2 out of 114 (2%).
But before we jump on the “trendiness” bandwagon, there is another equally simple way to describe the trend in the Court’s docket – bashing the Federal Circuit. All who read the Court’s IP cases know that many of the Justices seem to have lost confidence in the Federal Circuit, at least in part because of an excessive tendency toward a broad interpretation of patent rights. This has led to an increasing willingness, reminiscent of the Court’s treatment of the Ninth Circuit in past years, to review relatively minor decisions from the Federal Circuit. Because there is a big overlap in IP cases and Federal Circuit decisions, could this be the answer?
Probably not. The docket for OT2012 so far includes only 2 decisions out of 48 from the Federal Circuit (4%), which is about the same as OT2011 (3/75), but a sharp drop from OT2010 (7/82). For comparison, this has the Court reviewing essentially the same number of cases from the Federal Circuit as it has from the Sixth Circuit (13 cases since OT2010), and far less than the Ninth Circuit (56 cases since OT2010, more than a quarter of the Court’s entire docket).
So where does this leave us? It appears that the decided contraction of the Court’s docket well might bring with it a concerted focus on the kinds of questions that the Justices think are systemically important. And the focus on intellectual property certainly should be one of them.