Vote Counts: Supreme Court Ties Make Everyone The Loser

Intellectual property law is not especially ideological—or at least not obviously so. While there are many vehement disputes in the field of IP law, few if any can be cast in R–vs.–D, right–vs.–left terms. That is one reason that patent law has been an area in which the Roberts Supreme Court has been able to find unanimity in opinion after opinion over the past years. IP law, however, suffers when the Supreme Court cannot fully function. An eight–justice high court will inevitably produce tie votes. And, in the event of a tie, while the opinion of the lower court is affirmed, that affirmance has no precedential value, and so offers no guidance for the future. Instead of a clear (even if contested) statement of the law, we receive no statement of the law from the one court that exists to issue such statements. In the areas of patent, trademark, and copyright law—in which the pace of change in business and technology often breeds legal confusion—the moments of clarity provided by the Supreme Court are vital to business–planning. Moreover, because the Federal Circuit is the only federal appellate court that hears patent cases, the scenario is even worse. Recent en banc opinions of the Federal Circuit have revealed deep rifts within that court. Thus, it is far too easy to imagine an eight–person Supreme Court deadlocking in its review of a 6–5 opinion of the Federal Circuit. The result would be not clarity, but maximal confusion, with very real costs in time and money to litigants, lawyers, and trial judges.

A functioning democracy requires functional institutions; and those institutions only function as well as the people whose hands are on the levers of power. While you are casting a vote for the candidate of your choice tomorrow in the centuries–old tradition of the peaceful transfer of the power of the American government, spare a thought for the Supreme Court. We hope and trust that with a new administration will come a renewed commitment from all three branches of the federal government to filling vacancies on the high court.