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The week in review: June 10-14

The Court has transitioned to its end-of-Term schedule, releasing opinions on two action-packed days this week. We have seven opinions and one certiorari grant. That means there are just nineteen opinions to go before we put this Term to bed – and several of them raise exceptionally high-profile and contentious issues, including affirmative action, Section 5 of the Voting Rights Act, state voter ID laws, and same-sex marriage. Here’s the rundown of what happened this week.

This week’s headline decision is Justice Thomas’s opinion for a unanimous Court in Association for Molecular Pathology v. Myriad Genetics, Inc. The Court held that naturally occurring DNA segments cannot be patented, but it reached the opposite conclusion with regard to complementary DNA – also known as cDNA, which is essentially a synthesized replica of the protein-encoding parts of natural DNA, but not of the entire DNA sequence. Myriad Genetics had isolated two genes, BRCA1 and BRCA2, mutations in which correlate to a dramatically increased risk of breast and ovarian cancer; it then developed medical tests to detect the mutationsand therefore predict cancer. The company sought patents on the naturally occurring DNA sequences themselves, as well as on synthetic cDNA that it had created from the BRCA1 and BRCA2 genes. Those patents effectively gave Myriad the sole right to isolate (or license others to isolate) the BRCA genes – which means that Myriad effectively held a monopoly on the ability to test for mutations in the genes. The patents also gave Myriad the sole right to create BRCA cDNA.

In yesterday’s much anticipated decision, the Court held that naturally occurring genes are not patentable, but cDNA is. The Court recognized the importance of isolating the natural BRCA genes, but it reasoned that “[g]roundbreaking, innovative, or even brilliant discovery does not by itself” justify a patent; instead, the question is whether a “new and useful . . . composition of matter” has been invented. Because the BRCA genes are part of the natural DNA sequence, the Court determined that by isolating the BRCA genes, “Myriad did not create anything,” and the natural BRCA genes could not be patented. However, because cDNA is created in a laboratory and does not occur in nature, those sequences could be patented.

In a brief concurring opinion, Justice Scalia agreed with the Court’s conclusion but refused to join the Court’s foray into molecular cell biology, claiming that it was beyond his knowledge or even belief. It’s an interesting concurrence because there’s no rule requiring him to admit that he doesn’t understand biology, and it’s not clear how he benefits by volunteering his ignorance.  Because Justice Scalia is well known for his confidence, it may be that after reviewing the materials, he concluded that the Court’s description of the biology was erroneous, but perhaps not in a way that alters the ultimate result in this case, and therefore not in a way that warrants picking a fight. That theory is consistent with early criticisms of the Court’s treatment of the science.

We’ll be sorting out the implications of the decision for some time. But in the short term, a few results seem likely. First, good news for patients: the cost of genetic testing for breast and ovarian cancer will drop, because Myriad can no longer claim a monopoly. Second, genetic research is likely to continue full speed ahead. By leaving the door open to cDNA patents, the Court has created a mechanism for geneticists to monetize their inventions. Some have speculated that the advantage will primarily accrue to large biotechnology companies, which can afford to find ways to embellish and alter naturally occurring DNA. For its part, Myriad’s stock (symbol MYGN) bounced yesterday before taking a loss, and it appears to be dropping today. Lyle has more detailed coverage.

Don’t touch that dial, because there’s more! The vast majority of decisions this week (six out of seven), were unanimous. The exception?  Peugh v. United States, in which a sharply divided Court held that when the federal Sentencing Guidelines are amended after an offense has been committed to increase the recommended punishment for that offense, it violates the Constitution for a court to apply the new, harsher Guidelines. As a brief intro for those who aren’t familiar, the Ex Post Facto Clause of Article I on the U.S. Constitution forbids new laws that punish past crimes – a prohibition that applies not only to criminalizing past conduct, but also to increasing punishments for already-illegal past conduct. The question here was whether a change to the Sentencing Guidelines, which are advisory rules that judges consider when determining appropriate sentences for federal offenses, could trigger Ex Post Facto Clause scrutiny.

The Court held that it can. Explaining that “the touchstone of this Court’s inquiry is whether a given change in the law presents a significant risk of increasing the measure of punishment,” the Court concluded that because the Guidelines exert such a powerful influence on sentencing judges, a change to the Guidelines implicates the Ex Post Facto Clause even though the Guidelines are not binding. Four Justices dissented, criticizing the majority’s test as “unworkable” and arguing that it had been misapplied in this case. Rory Little has detailed coverage.

The remaining five cases were easy by comparison.

In Horne v. Department of Agriculture, the Court, in an opinion by Justice Thomas, held that a couple who produce raisins in California was permitted to challenge an agricultural fine against them as an unconstitutional “taking” in a U.S. District Court. The Hornes were fined by the Department of Agriculture for refusing to set aside a sufficiently large portion of their raisins – a requirement that the USDA imposes to manage supply, and therefore prices, of agricultural commodities. The couple argued that the fine was an unconstitutional “taking” of their property. The question presented is whether they are allowed to challenge the fine before they had actually paid it, and whether they are allowed to bring their challenge in a district court, or must instead do so in the Court of Federal Claims, a special court that handles many claims against the federal government. The Supreme Court held that they can bring their challenge now, and they can do it in a normal district court. As Lyle explains, this case could have potentially broad implications for the future of administrative fines and enforcement.

In United States v. Davila, the Court, in an opinion by Justice Ginsburg, held that when a judge participates in plea negotiations between the government and a criminal defendant, that participation does not automatically render the ensuing guilty plea invalid. Although judges are not supposed to be involved at all, the Court held that this type of error does not result in automatic reversal. Instead, the defendant must show that some prejudice resulted from the judicial intervention. The ruling brings the Eleventh Circuit’s precedent in line with the other courts of appeals, and is therefore unlikely to have a significant impact anywhere outside that jurisdiction. Rory Little has more.

In American Trucking Associations v. Los Angeles, the Court, in an opinion by Justice Kagan, held that the Federal Aviation Administration Authorization Act of 1994 expressly preempts certain provisions of a concession agreement between the Port and City of Los Angeles, and various trucking companies that haul cargo into and out of the port. Miriam Seifter has the full report.

In Oxford Health Plans LLC v. Sutter, Justice Kagan wrote for a unanimous Court, holding that when an arbitrator rules that an arbitration agreement authorizes class-wide arbitration, then courts cannot overturn that determination as long as the arbitrator was even arguably attempting to interpret the contract – even if the interpretation is dead wrong. The decision is highly deferential to arbitrators, and turns, in part, on both parties’ agreement that the issue was, in fact, subject to arbitration. Justice Alito, joined by Justice Thomas, concurred, expressing skepticism that absent class members could be bound by a class-wide arbitration judgment. The decision is a little bit surprising because the Court had previously expressed hostility toward class-wide arbitration. Steve Vladeck has all the details.

Finally, in Tarrant Regional Water District v. Herrmann, the Court, in an opinion by Justice Sotomayor, held that Texas did not have the right, under the Red River Compact, to enter Oklahoma to divert water. The opinion is unlikely to have much significance for anybody other than those directly affected, and our colleague Thomas Merrill advises everybody else to “save your eyeballs for the next two weeks.”

In addition to these seven opinions, we had one cert. grant this week, in BG Group PLC v. Republic of Argentina, a case involving whether courts or arbitrators have the power to determine whether preconditions to arbitration have been satisfied. That case is on next Term’s docket, along with twenty eight others, though we expect one of those to disappear at the parties’ request. [Disclosure: Attorneys at Goldstein & Russell, P.C., including me, represent petitioner BG Group PLC.]

That’s it for this week. We’ll have orders on Monday at 9:30 a.m., followed by opinions at 10 a.m. We will start live-blogging at 9:15 a.m.  Tune in then for up-to-the-minute coverage.

Recommended Citation: Tejinder Singh, The week in review: June 10-14, SCOTUSblog (Jun. 14, 2013, 11:22 AM),