In some cases it can be reasonably obvious which way the Supreme Court justices lean. Oral argument and questioning in United States v. Stevens and District of Columbia v. Heller, for example, left most observers fairly certain which way the ultimate opinion would rule.
In the case of Tapia, I’m only really sure of Justice Scalia’s vote. Justice Sotomayor seemed to lean pretty clearly one direction, but I have no idea if she was merely feeling out the waters on her argument, vocally pushing it to her colleagues, or just testing the arguments presented to her. And I couldn’t say how she might respond to the ultimate assertion made by Tapia (rather, the lawyer who argued for her) that “Congress has spoken” and that her desired outcome (supposing she indeed desires it) had been foreclosed.
In the case of Microsoft I have even less to go upon. I consider this the more technically challenging and complex argument, both for me to understand and for the justices to approach. Much of it went over my head. I suspect more justices will be drawn to the argument that Justice Cardozo described the standard of proof in patent cases in his long-ago opinion, simply based on discussion of it during the argument, and the appeal of referring to it under the concept of stare decisis (that is, to generally stand by prior decisions — although when one makes exceptions, as all justices do, is key to applying the doctrine). That doesn’t bode well for Microsoft. (Particularly because with Chief Justice Roberts’s recusal, Microsoft must count to count to five — but i4i only needs to count to four for their win to be upheld. In that case i4i would win the day without the case setting precedent to conclusively establish a standard of proof in patent litigation.) But I could easily be wrong.
I didn’t know exactly what to expect when I decided to make the trip to D.C. to go to an oral argument. Would it be worth the time to endure a mostly sleepless night, to go to arguments I might well not understand, at the expense of time and money it would take to be there? I was pretty sure the answer was yes (after buying the plane ticket to D.C. I was practically giddy with anticipation, and anyone who knows me knows how rarely I get that excited), but I didn’t know for sure.
Looking back, it was well worth the effort. Getting to see the highest court in the country in session, on matters of strong importance, even if I didn’t fully understand all that was discussed, was a priceless experience. And it was all the better by preparation spent reading briefs and considering the arguments presented. (I strongly recommend doing this if you ever consider visiting.) There’s also something to be said for the experience of just sitting in the line to get in, with people of all varieties all waiting to get in, each with as equal a right as yours to be there. (Well, almost equal: there’s that Supreme Court bar line, but they certainly put in the time for it. Although I have to admit I don’t immediately see a rational relationship between that investment of time, money, and labor and the ability to see arguments more easily.)
Anyway: it was definitely worth doing, and if I have reason to be in the area again in the future at an opportune time, I’ll probably try to do it again.
After much line-standing, it was now time to hear actual argument.
For a number of reasons, I’m not going to go into much detail. First, I was pretty sleep-deprived. While I did a reasonable job of concentrating on the arguments, my mind sometimes just wasn’t capable of keeping up with the discussion out of sheer exhaustion. This also means my memory of the arguments is spotty and may have forgotten particular interesting exchanges. Second, while I read petitioner/respondent briefs for both cases, quickly skimmed the United States’s briefs in both, and read a couple amicus briefs of particular interest in Microsoft v. i4i, I’m far from expert in either area of law, so anything I say isn’t going to be the best-informed commentary. Third, if you want full detail, you can always read transcripts and listen to audio (simultaneously, even, thanks to The Oyez Project) from the oral arguments for Tapia v. United States and for Microsoft v. i4i. (Count your blessings: until Chief Justice Roberts joined the Court in 2005, transcripts and audio weren’t released until the end of the term, around the end of June. The Court then started releasing transcripts shortly after argument. And until this year, with very rare exceptions, they didn’t release oral argument audio until the end of the term, whereas now it’s released at the end of the week the argument occurs.)
For the most part, then, I’ll limit discussion to the impressions that stuck with me. Due to lack of time I haven’t gone over the argument transcripts, so this is all raw recollection diluted by a week’s delay in scribing.
The justices sit in high-backed chairs that appear very solemn, rigid, and somber. They are that — when nobody’s sitting in them and testing them. It turns out the chairs recline quite considerably, which diminishes their impressiveness a bit. Justice Thomas and Justice Scalia sit next to each other in this iteration of the Court (the chief justice sits in the center, and the remaining justices alternate sides in order of seniority, so they sat on opposite sides before Justice Kagan joined the Court), and they had a tendency to lean back so far in the chairs that the sense of dignity the chairs conveyed was rather disrupted. Not that it really makes any difference, of course: they are who they are. Still, it was kind of funny to see that the chairs’ veneer of gravitas wasn’t as deep as the angle they reclined.
Justice Thomas is frequently noted as remaining unusually silent on the bench. At the moment he hasn’t spoken in oral argument in just over five years — to counsel making argument, that is. From time to time he and Scalia would turn their chairs and confer with each other, as a lawyer for one side or the other continued his argument, presumably discussing the case being argued. His involvement’s certainly not passive even if that involvement includes none with counsel making an argument. This is about what I’d read various places before going to argument.
Justice Ginsburg is definitely the most frail-looking justice. Even taking into account her physical position, she seemed to look downward at counsel more than appeared to be necessary, and she seemed to hunch over the presumed papers in front of her when asking questions. The other justices had a physical presence of sorts which Justice Ginsburg seemed to lack. (Again, not that it makes any real difference, she being who she is.)
Some people question the importance of oral argument, suggesting that the written briefs settle the issue, the justices have already made up their minds, and so on. Among the usual arguments against this is that the justices use argument as a sounding board to figure out what their fellow justices think and to in a sense passively-aggressively make their cases to each other. If that happened here, I didn’t have the Court-reading experience to see it, or perhaps these cases were simply not clear-cut enough for it to happen in any obvious way.
Tapia v. United States
Justice Sotomayor asked a number of questions, at various points in the argument, which essentially took the point of view of a district court judge tasked with sentencing. Her questions seemed to suggest that she thought judges should have sentencing discretion to consider rehabilitation programs for the defendant’s own good. She was a trial judge at one time, as I recall, and I found it interesting that, for the first time I can recall reading, (dare I say it?) empathy due to her past experience as a trial judge seemed to strongly affect her approach to a case. I also found it interesting because from what I can remember, historically her position has been generally pro-defendant, and (facially) this sympathy for the judge would run counter to that.
Justice Scalia, well known as an advocate of textualism, repeatedly questioned about how a judge could “recognizing that imprisonment is not an appropriate means of promoting correction and rehabilitation” while lengthening a sentence to rehabilitate. As I recall he drew a laugh once for suggesting a judge could “recognize”…and then say he was going to give a longer sentence anyway. He seemed to find the statutory text pretty clear.
I have no strong memories of the questions and answers of the other justices (save Justice Thomas, who asked no questions), although I’m sure on reading the oral argument transcript more memories would spring to mind.
Microsoft v. i4i
The very first thing I noticed about this case was that, in the very brief recess between this case and Tapia, Chief Justice Roberts had disappeared. This was expected: he’d recused himself because, as I recall, his family owns Microsoft stock. At the same time his disappearance was so abrupt that I didn’t even see him leave, despite making half an effort to watch and see it happen (because I was wondering if the other justices would rearrange their seating around Justice Scalia, who acted as chief justice for the argument).
I found this argument more technical and peppered with citations than the previous one, which made it harder to follow. The justices spent some time talking about RCA v. Radio Engineering Laboratories, Inc., the opinion in which Justice Cardozo made perhaps the strongest statements supporting the clear and convincing standard of proof. It was more time than I’d have expected, given the other opinions that could have been discussed as well.
At one point one counsel cited an opinion made by then-Judge Alito when he had been judge in a lower (circuit, I think?) court. I’m not certain, but I suspect it was the same side that had also cited an opinion of his in their brief. I had to read briefs containing bald assertions that previous cases cut in exactly opposite directions, and skeptic that I was at the time, I found this good for a laugh when reading that brief. Justice Alito seemed to think similarly, as he immediately made a self-deprecating comment about how he wasn’t nearly as smart at the time, or something to that effect. However, I don’t remember thinking he was seriously hinting which way he was leaning in doing so.
When oral argument in Microsoft finished (Microsoft’s counsel still had rebuttal time, as I noticed because the white light on the podium had turned on [indicating five minutes remaining] but the red light [indicating no time] had not), my mind felt overwhelmed with what I’d seen and heard. I knew I’d followed less than half of what had been said, yet at the same time I knew I’d basically achieved my goal: to know enough to be dangerous while hearing the arguments.
Alejandra Tapia and a friend were passing through customs while driving from Mexico to the United States. An immigration official noticed they were acting nervously and took a closer look at their car, discovering two illegal immigrants that Tapia was attempting to smuggle into the United States. She was arrested for this but was soon released, subject to court restrictions, while proceedings continued. When she failed to appear in court for a hearing, a warrant was issued for her arrest. After later apprehension Tapia was convicted on counts related to her smuggling of illegal immigrants and for jumping bail.
The judge responsible for sentencing her thought she would benefit from a particular drug treatment program, offered only in certain prisons. In order to get her into that program, he recommended Tapia be sent to a particular prison, and he increased the length of her sentence explicitly to give her the opportunity to take part in that program. In doing so he potentially fell afoul of this statutory language:
The court, in determining whether to impose a term of imprisonment, and, if a term of imprisonment is to be imposed, in determining the length of the term, shall consider the factors set forth in section 3553(a) to the extent that they are applicable, recognizing that imprisonment is not an appropriate means of promoting correction and rehabilitation.
Before enactment of the law adding this language, the “rehabilitative ideal” as implemented by U.S. law held that isolation from society and prison routine would rehabilitate criminals. Parole boards determined when prisoners were ultimately released based on subjective assessments of the progress of inmates. The Sentencing Reform Act changed the system to be more objective, while still attempting to leave judges discretion to determine individualized sentences.
The sticky wicket is in the phrase, “recognizing that imprisonment is not an appropriate means of promoting correction and rehabilitation”. Does “recognizing” this mean that when a district court sets a length and term of imprisonment, he can’t consider rehabilitation programs in determining the sentence length? If he can’t consider them, then perhaps Tapia’s sentence was wrongly lengthened. On the other hand, section 3553(a) explicitly says, “The court…shall consider…the need for the sentence imposed…to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner”, which arguably includes drug treatment programs like the one recommended for Tapia here. How should the “recognizing” clause be understood?
Further wrinkles in this particular instance include that Tapia wasn’t sent to the recommended prison (because doing so would place her in too close proximity to another inmate deemed likely to be a bad influence) and that she wasn’t entered into the recommended drug treatment program (as I understand it, because she refused to be enrolled). So the judge in question (more generally, any judge, as I understand it) couldn’t actually have required her to enroll in a treatment program as part of her sentence.
Laws and decisions to consider
This is mostly a case of statutory interpretation of existing laws, so there’s not much in the way of prior Supreme Court decisions to consider. It mostly comes down to how you read the text of the relevant statutes. One statute beyond those above that I find particularly interesting is 28 U.S.C. § 994(k), which states:
The Commission shall insure that the guidelines reflect the inappropriateness of imposing a sentence to a term of imprisonment for the purpose of rehabilitating the defendant or providing the defendant with needed educational or vocational training, medical care, or other correctional treatment.
The guidelines in question specify sentencing ranges from which judges generally can’t depart. Interestingly, this section seems pretty clear that sentencing to a term of imprisonment for the purpose of providing the defendant with access to “correctional treatment” (like a drug treatment program) is not acceptable. If §3582’s text is ambiguous, perhaps this text might clarify it.
Microsoft v. i4i Limited Partnership
In the 1990s i4i received a patent on a method of storing a document whose contents are structured, say, by formatting, nesting, and so on. Broadly speaking, the patent proposes storing document contents separate from document structure to facilitate easier manipulation. (The exact trick is pretty much this: store all the textual contents of the document somewhere, then store a list of pointers into that text with associated semantic meanings, like begin-element or end-element, separately.) The idea apparently works well when used in editors, and Microsoft once (no more, due to this litigation) used it in the custom XML editor built into Word. i4i sued them for doing so, and while Microsoft claimed the patent was invalid, the jury didn’t buy it. Microsoft was required to pay i4i $200 million for infringing their patent, then $40 million for doing so willfully. (Apparently Word developers had seen a presentation from i4i about software practicing the patent, asked questions about how it worked, received marketing material from i4i that mentioned the patent by number, and discussed i4i’s marketing material in email.) With interest the total’s now around $300 million.
Microsoft pled their case up through the courts, losing at each level. Finally they appealed to the Supreme Court — but because Microsoft’s particular travails aren’t necessarily interesting to the Supreme Court as it can only selectively right wrongs (it reviews around 1% of ten thousand or so appeals every year), Microsoft tried an interesting tack: they challenged the standard of proof required to demonstrate invalidity of the patent. This got the Supreme Court to bite and hear their appeal.
The district court told the jury that Microsoft had to prove invalidity by clear and convincing evidence, a phrase not found in statutory text but rather inferred from 35 U.S.C. § 282. Microsoft argues that when the standard of proof is unspecified, the default (with rare exceptions not relevant here) is a preponderance of the evidence. Clear and convincing evidence basically means the claim is “highly probable”; a preponderance of the evidence basically means the claim is “more likely than not”, or “50% plus one”. It could be much easier for Microsoft to prove invalidity if they only had to get a jury to say that the patent in question was more likely than not (by even the smallest fraction) to be invalid.
(What was Microsoft’s evidence of invalidity, you ask? Here it turns into a mess. i4i sold software called S4 over a year before applying for the patent, and S4 might have implemented the patent in question. If S4 implemented the patent, then an on-sale bar in 35 U.S.C. § 102(b) would invalidate the patent. Microsoft and i4i disagreed about whether S4 practiced the patent. [S4's source code, and presumably S4 itself, was no longer available to be inspected, as S4 had been obsolete before litigation commenced.] Microsoft said S4 implemented the patent, citing the software’s manual, testimony from a former i4i employee, and a letter i4i’s founder wrote to investors indicating that S4 implemented the idea he later patented. i4i’s founders said it didn’t, and one stated in court that the musings in the letter to investors were “an exaggeration, and as I said, it could be said to be a lie” and that the idea was conceived after S4 went on sale. Without S4’s source code Microsoft couldn’t prove invalidity by “clear and convincing evidence”. But it’s quite possible Microsoft could prove it was “more likely than not” that the on-sale bar applied, and that the patent was invalid.
Microsoft also attempted to claim invalidity of the patent by dint of its being obvious through combination of a couple other patents, one of which the examiner who granted i4i’s patent hadn’t seen. Should a patent be “presumed valid” in the language of the statute, and in the lower court’s understanding thus requiring clear and convincing evidence to prove invalid, if the evidence for invalidity wasn’t considered when the patent was granted? Here too could be another avenue of attack under a favorable ruling.)
Laws and decisions to consider
This case, as like Tapia, is mostly a matter of statutory interpretation. But beyond the clauses of patent law at issue there are also a few Supreme Court decisions of relevance.
First, in 1934 in RCA v. Radio Engineering Laboratories, Inc. Justice Cardozo variously described the burden to overcome a patent’s presumption of validity as “clear and cogent evidence”, that the challenger “bears a heavy burden of persuasion, and fails unless his evidence has more than a dubious preponderance”, and that “the countervailing evidence is clear and satisfactory”. (Microsoft distinguishes this language as referring to particulars of that case, specifically that the evidence being tried there had been tried once by one party and found wanting, then in that case was being tried again by an entirely separate party — so “clear and convincing” makes sense only in that rare situation.) Justice Cardozo’s opinion, and its language, precede the statutory text used to justify the clear-and-convincing standard: does the text merely codify that precedent? (Of course, Microsoft and i4i furiously disagree about what the precedent says, and about how courts interpreted that standard.) This case cuts for i4i.
Second we have Grogan v. Garner and Herman & MacLean v. Huddleston. In Grogan the former Justice Stevens, analyzing a case where the statutory text was silent about the standard of proof, determined the standard to be a preponderance of the evidence. In Justice Stevens’s words, “This silence is inconsistent with the view that Congress intended to require a special, heightened standard of proof.” In Huddleston Justice Marshall determined the standard of proof in a similar situation to be a preponderance of the evidence. These cases cut for Microsoft.
Third we have KSR v. Teleflex, a 2007 Supreme Court patent case. In passing in that case, Justice Kennedy wrote in dicta for a unanimous Court that “the rationale underlying the presumption—that the PTO, in its expertise, has approved the claim—seems much diminished” in a case where the PTO hadn’t considered evidence being used to challenge a patent. So perhaps the presumption of validity that Microsoft was challenging shouldn’t apply (or should apply with lesser force) because the PTO didn’t know about the software Microsoft claims implemented the patent. This would cut for Microsoft.
Past this you have the usual arguments for and against patents: Microsoft saying that granting patents too easily is dangerous (an interesting position for them, perhaps), and i4i saying that the patent system stimulates innovation and that invalidating patents hurts that. (Each side’s argument pretty much completely ignoring the patent system’s inherent balancing act between incenting progress and retarding it.) How much weight you want to give this depends to an extent on what sort of partisan you are.
I executed my plans and arrived at the Court at approximately 02:45. There was no obvious line, so I wandered around the Court plaza to look for a sign indicating where the line would form. (I knew it wouldn’t simply be on the front steps, alas.) I found none, and I hadn’t yet wandered up to a nearby guard to ask when the first person in line wandered up to confirm my intentions. (Note to anyone wondering exactly where the line forms: it forms on the sidewalk at the south end of the arc of waist-high columns in front of the Court, then trails south along 1st Street NE toward the corner.) Will, a patent attorney from North Carolina, flew up Sunday and arrived at the Court on the last Metro bus shortly before midnight. He too had been uncertain about timing and was playing it safe by arriving early.
Will and I talked off and on until 04:00 when the line truly began to form. (This is recommended both to pass time and to gain friends who can hold your spot in line should you need to leave to use a bathroom or get some food.) At that time a cadre of patent examiners from the Alexandria office arrived on an informal field trip. More visitors followed shortly after, and by 04:15 the line was at 15-20 people.
I’d been warned it could get cold outside, and while it wasn’t cold, later in the night it wasn’t really warm. When I pulled on a Mozilla jacket to fend off the slight chill I quickly discovered:
Patent examiners hate IE. (And not just IE6, or IE7, or something similarly old: any version of IE. Amy, the patent examiner who told me this, was very emphatic on this point.)
Patent examiners love Firefox.
Patent examiners love Firefox extensions.
Patent examiners are probably the most legitimate tab over-users I’ve encountered. (It makes sense if they’re reference-checking and researching patent applications, considering many sources of information at a time.) One examiner told me he has around 300 tabs open.
Patent examiners are particularly interested in 64-bit Windows Firefox builds, because when you open 300 tabs you start hitting 32-bit memory limits. One had somehow found a 64-bit Windows build of “Namoroka” (Firefox 3.6) and had been using that for quite some time. I told him that there are unsupported 64-bit Windows builds of Firefox 4, and I mentioned that 64-bit Windows Firefox should happen soon.
The line grew in fits and spurts from there on. By 05:15 the line was up to perhaps thirty; by 05:40 the line had roughly passed the 50-person lower bound on nigh-guaranteed public seating. Subsequent arrivals frequently expressed disbelief at the length of the line, which made me quite glad I’d arrived as early as I did. Shortly before 06:00 a couple groups of us near the front tag-teamed watching our spots and heading to a nearby Starbucks for a bite to eat. I hadn’t planned on doing so, but I took the chance (and the caffeine) when I could. During the walk to and from it I further discovered that patent examiners have a sense of humor about the applications they see and about what they do.
Just after 07:00 the unofficial line moved into position on the plaza, and we settled down again to wait. Shortly after we received numeric cards indicating our place in line, and once that happened we had somewhat more flexibility about what we could do: use the Court restrooms (immaculate gray marble, hands-free toilets and sinks, all imbued with considerable gravitas) and snack area (after passing through security), go elsewhere, and so on, so long as we returned in time to enter the Court.
After a Mountain Dew (more caffeine!) from that snack area and a bit more waiting, we finally began to pass through security. After ascent up stairs to the level of the courtroom, we deposited our things at the coin locker and coat-check area. After one last security screening (the second set of metal detectors to be passed), we were finally in the courtroom.
It wasn’t obvious which seats were reserved for the public and which were reserved for other use. The first ten people in line including me were seated at audience left on movable wooden chairs between two marble columns, just past the area where the Supreme Court press corps sit. The columns partially obscured the view of people behind me (which would seem to indicate that there’s no position in line guaranteeing a good view, unless you attend as a member of the Supreme Court bar), but fortunately I had a good view of all the justices.
At 10:00 the Court was called to order as the audience stood while the justices entered the Court. The first order of business before argument was to process admissions to the Court bar, a briskly formal process except for the brief moment after George Martinez moved that his three sons be admitted, in response to which Chief Justice Roberts, after granting his motion, further wished him congratulations. Sometimes opinions in previous cases are announced before argument, and occasionally a dissenting justice will give a stemwinder from his opinion if he felt strongly enough that the result was wrong, but unfortunately neither happened today. This business complete, the Court proceeded to arguments.
If I was to combine a trip with a visit to family for Easter, I was limited to arguments in April. One sitting stood out as particularly interesting: the April 18 sitting in which Tapia v. United States and Microsoft v. i4i Limited Partnership would be argued. Tapia concerned the permissibility of considering in-prison rehabilitative programs during sentencing — not an issue of particular interest to me. But Microsoft concerned patents, which are certainly relevant to anyone in the software industry. It made a good fit: my weekend was chosen.
Supreme Court oral arguments are open to anyone who arrives “early enough”, which depends on the interest level of the cases being argued. Tapia, as a sentencing case not touching a contentious issue like the death penalty, was low-interest. But “the showcase intellectual property case of the year” might well draw a moderate crowd. And I knew from a Mozillian who’d attended Bilski v. Kappos, the last major patent case before the Court, that arriving at 22:00 the day before a patent case could be good for a spot near the end of public seating. (Huge caveat: the otherarguments that day concerned juvenile life imprisonment without possibility of parole.)
Based on one suggestion of 05:00 for “mid-major” cases (which I suspected Microsoft to be) and the effort I was making just to get to D.C., I decided to err heavily on the side of caution by waking up at 1:00. I would take a shower, get dressed in a suit purchased Friday (Visa flagged it as a fraudulent transaction, and I think they were on to something), and walk forty minutes to the Supreme Court. Better to get less sleep but be guaranteed to see the argument than to gamble and lose after making such an effort to even have a chance to see it.