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No action on same-sex marriage

The Supreme Court, after taking most of the day to prepare new orders, took no action Friday on the ten same-sex marriage pleas now on the docket.  It did agree to rule on whether taking a human gene out of the body for research is a process that can be patented.  That case is Association for Molecular Pathology v. Myriad Genetics, with the grant limited to that issue.  The Justices also agreed to rule on legal protection for makers of generic drugs (Mutual Pharmaceutical v. Bartlett).

The next opportunity for the Court to issue orders will be at 9:30 a.m. Monday.  Nothing has ruled out the possibility that some actions on same-sex marriage could be announced at that time, although there is no indication that that will occur.  It may be that the Court needs more time to decide what it wants to do next on any of the cases.   If the Court has chosen to deny review of all of the cases, even that might not come out on Monday, since the chances are that there would be dissents from some of the denials, and it would take some time to prepare dissenting opinions.  But denial of all of the cases is an extremely remote possibility anyway.

If no orders on any of these cases emerge on Monday, the next indication of what the Court may be doing with the issue could come with re-setting them for the private Conference that will be held next Friday.  It is not uncommon, in cases that have some complexity, for the Court to require more than one Conference sitting to decide how to proceed.  Ordinarily, the Court re-schedules cases after releasing orders and opinions from a Conference.  Thus, that could happen on Monday or Tuesday of next week — orders are due Monday, one or more opinions Tuesday, but only in cases already heard.

At this point, any prediction about where the same-sex marriage cases stand at the Court is subject to serious error.   The Court does not explain inactions, so silence can mean many alternative possibilities.  The Court, though, does tend to follow fairly fixed patterns of activity.  The announcement of grants on Friday is usually linked to a desire to get enough cases put on the decision docket to fill the next openings in the argument calendar.  As of this morning, the Court still had eight slots open for argument during the March session.  By announcing grants this afternoon, the Court gave counsel a few more days to prepare briefing in the two newly granted cases.

Lawyers and other public Court watchers knew that the same-sex marriage cases were being considered at this morning’s Conference, because that fact was listed on the public docket page for each case.  The Court had been due to consider the cases as early as September, but that was first put off until November 20, when all documents in all ten files would be available, and then to today’s Conference.  When the Court re-sets a case or cases, it does not explain why.

The same-sex marriage cases are complex because they involved a variety of constitutional issues, a series of procedural complexities, and then some scheduling considerations — such as who is to line up on which side of any granted case.  If the Court is prepared to hear one or more of the cases, they still may want to re-write the questions in a form that they prefer to address, and that usually takes a bit of time.  Although some of the Justices presumably have spent some time thinking about these cases, and perhaps having their clerks read some of the papers (and maybe doing so themselves), Friday’s Conference was very likely the first time that all nine Justices had a group conversation about them.

If granting any cases was going to be easy, the chances are that an order saying so would have come out by early in the afternoon.   The fact that no order emerged until after 3 p.m. was the strongest indication that the Court had been spending extra time on these ten cases, without reaching a conclusion.  It would not have taken much time to write the order on the two cases that did get granted.

On the two cases that the Justices did grant, the human gene patent case shapes up as a major case with potentially wide impact on scientific research, medical practice, and women’s health, in particular.   The case involves the extraction of DNA from human body cells, in the form of “isolated” biological material, for purposes of study.   An examination of mutant forms of two genes that are now held under patent monopolies can give a strong indication of whether a woman is at risk for hereditary breast or ovarian cancer.

This case was before the Justices last Term, but the Court, rather than grant review of the human gene patentability, sent the case back to the specialized patent court — the Federal Circuit Court — for a new look in the wake of a decision last Term limiting the opportunity to patent claimed inventions on the application of the laws of nature.   An invention that is nothing more than a recitation of a law of nature is not eligible for a patent; the Court said there must be a clear application of such a law, perhaps in a research or diagnostic setting, before it could be eligible for a patent.

When the case returned to the Federal Circuit, it once again ruled that “isolated DNA” was patentable.   In taking the case back to the Supreme Court this Term, a group of doctors, researchers, clinicians, and geneticists and their organizations asked the Court not only to rule on whether a human gene can be patented, but also whether the Federal Circuit was wrong in upholding a method patent held by Myriad Genetics, and whether it also was wrong in setting a narrow definition of who may sue to challenge the legality of a patent.   The Justices, in granting review, limited their review to the single issue of gene patentability.

The second case granted Friday is also a reprise of prior activity on a similar issue two Terms ago, along with some earlier Court precedents in the field of claims of harm done from drugs, medical devices or other consumer products.  The issue in the case is whether federal law bars lawsuits claiming that a drug made by a generic manufacturer was defective in its design.   A generic firm, Mutual Pharmaceutical Co., Inc., told the Court in its petition for review that the First Circuit Court was wrong in concluding that a generic company whose design had been challenged in court could avoid conflicting with federal law by simply ceasing to make its products.

It appears that both of the cases will be scheduled for oral argument in March.

Recommended Citation: Lyle Denniston, No action on same-sex marriage, SCOTUSblog (Nov. 30, 2012, 3:16 PM),