CJE Bulletin: Gorsuch Defends Judicial Review

Adam Shelton · April 21, 2020

Yesterday the Supreme Court issued three opinions. In the most discussed decision, Ramos v. Louisiana, Justice Gorsuch penned a well lauded majority opinion. There, Gorsuch wrote glowingly about the importance of judges upholding the original meaning of the Sixth Amendment. He also lambasted the use of extra-judicial considerations, like a cost-benefit analysis, in judicial opinions. But this case, where IJ filed an amicus brief, was hardly the only notable opinion from Justice Gorsuch yesterday.

In another case, Thryv v. Click-To-Call Technologies, Justice Gorsuch stood against seven of his fellow justices arguing that administrative agencies do not have unreviewable power to strip individuals of their property rights. Notably though, it was not Justice Thomas or Kavanaugh who joined Gorsuch in protecting the rights of individuals. Instead, Gorsuch’s sole partner was Justice Sotomayor.

This case stems out of a long running dispute about patent violations. Thryv, Inc., was sued in federal court for violating certain patents. Rather than litigate the matter, Thryv turned to the Patent Office and petitioned for a review of the patents they were charged with violating. The point of this review was to have the patents canceled, because canceled patents cannot be violated.

The Patent Office agreed to review the patents and found that they lacked novelty and were obvious. The company who owned the patents appealed to federal court arguing that the Patent Office should have never accepted the petition for review because the petition was not filed within a year of Thryv receiving “a complaint alleging infringement of the patent in federal court.” In other words, that Thryv was late.

Now this is where it gets confusing. Click-To-Call Technologies, which owned the patents, had filed a lawsuit and served Thryv with that complaint within a year of that petition for review. But the owner of the patents had served Thryv’s predecessor company with a complaint about the same patents twelve years earlier. So, Click-To-Call Technologies appealed the cancellation of their patents because the petition for review of their patents was filed (long) after it should have been.

Unfortunately, the majority did not engage at all with the facts of the case. They did not evaluate whether the complaint served on Thryv’s predecessor twelve years earlier counted. Rather, they, to paraphrase Justice Gorsuch, abdicated their judicial duty.

They determined that a prohibition of judicial review in another section of the relevant statute somehow applied here with a bit of fancy, statutory, footwork.

Justice Gorsuch was incredulous with the majority’s abdication. He lamented the fact that the majority’s decision not only allows the “agency’s decision to stand immune from judicial review” but “closes the courthouse not in a case where the patent owner is merely unhappy with the merits of the agency’s decision but where the owner claims the agency’s proceedings were unlawful from the start.” This, for Justice Gorsuch, constituted abdication of judicial duty.

While Justice Gorsuch admitted that Congress could likely have enacted such a prohibition, he argued that it did not do so here. He notes that the prohibition on review is in a different section from what was at issue in the case and cabined to that section. And instead “[t]he relevant statute, the presumption of judicial review, and our precedent all point toward allowing, not forbidding, inventors their day in court.” This, for Justice Gorsuch constituted just “another step down the road of ceding core judicial powers to agency officials and leaving the disposition of private rights and liberties to bureaucratic mercy.”

Gorsuch further noted the absurdity of allowing the Patent Office officials to be the final arbiters of whether restraints placed upon them even apply. The officials are now, because of the majority’s opinion, constrained by the law only in-so-far-as they chose to be restrained. And there was nothing the inventors could do if the Patent Office officials chose to blatantly ignore those restraints.

The Court’s expansive reading of the prohibition of judicial review is just another decision in which it hands its own power over to the executive branch. “[P]owers involving the disposition of individual rights.” This, for Gorsuch, is not how the separation of powers was meant to work and not the role envisioned for the judiciary by the founders.

In the words of Justice Gorsuch, “It’s a rough day when a decision manages to defy the plain language of a statute, our interpretative presumptions, and our precedent” and reaches a result not commanded by a statute and not permitted by the Constitution. But at least there is some hope in Gorsuch’s dissent here and a great deal of hope in his majority opinion in Ramos.

Adam Shelton is a fellow with IJ’s Center for Judicial Engagement

Read IJ’s Press Release for Ramos v. Louisiana.