Smackdown Justice Scalia Style

Much has been written about Justice Clarence Thomas, his jurisprudence, and his proclivity to vote with Justice Scalia an overwhelming majority of the time. I don't want to rehash that here, nor do I feel qualified to give an informed interpretation of his skill as a legal opinion writer.

That being said, after reading this majority opinion, just handed down today in the case of Medimmune, Inc. v. Genentech, Inc. et al. I was shocked at how ruthless Scalia was in criticising Justice Thomas' solo dissent in the case.

A brutal simplification would characterize the case as being about whether a patent licensee can challenge the validity of a patent without first breaching the license, by refusing to pay the agreed upon royalites. The licensor argued that to allow such a challenge would violate the Constitution's Article III "Cases and Controversies" clause. The majority opinion, signed by all eight justices, save Justice Thomas, found in favor of the licensee.

While the specific case is interesting and has potentially far reaching consequences in the area of patent law, what I found ingtriguing was how scathing Scalia was in refuting many of the contentions made in Thomas' opinion. As if often the case, much of the intramural battling was done in the footnotes. While there are many examples, here are some of the best (emphasis is mine, except where noted). I've broken them into two categories:

Indelicate Disagreement

- pg 3 of the majority opinion, note 2 - "The dissent contends that the question on which we granted certiorari does not reach the contract claim. Post, at 5 (opinion of THOMAS, J.). We think otherwise. The question specifically refers to the "license agreement" and to the contention that the patent is "not infringed."Pet. for Cert. (i). The unmistakable meaning is that royalties are not owing under the contract. "

- pg 8, note 7 - "Coffman v. Breeze Corps., 323 U. S. 316, 323–324 (1945), cited post, at 3, does not support the dissent’s view (which is why none of the parties cited it). "

- pg. 11, note 9 - "The dissent claims the cited cases do not "rely on the coercion inherent in making contractual payments." Post, at 9, n. 3. That is true; they relied on (to put the matter as the dissent puts it) the coercion inherent in complying with other claimed contractual obligations. The dissent fails to explain why a contractual obligation of payment is magically different. It obviously is not. In our view, of course, the relevant coercion is not compliance with the claimed contractual obligation, but rather the consequences of failure to do so."

Accusations of Outright Disingenuousness

- pg 4, note 4 - "The dissent observes that the District Court assumed that Synagis was "‘covered by the patents at issue.’ " Post, at 5 (quoting App. 349– 350). But the quoted statement is taken from the District Court’s separate opinion granting summary judgment on petitioner’s antitrust claims [emphasis in original]...This tell us nothing, however, about petititoner's contract claim or the District Count's later juristictional holding with respect to it."

- pg 6, note 6 - "The dissent asserts that petitioner did not allege a contract claim in its opening brief or at oral argument. Post, at 5. This is demonstrably false."

- pg 12, note 10 - "The dissent incorrectly asserts that Altvater required actual infringement, quoting wildly out of context (and twice, for emphasis) Altvater’s statement that " ‘[t]o hold a patent valid if it is not infringed is to decide a hypothetical case.’...As the full quotation makes clear, the snippet quoted by the dissent has nothing to do with whether infringement must be actual or merely threatened. Indeed, it makes clear that in appropriate cases to hold a noninfringed patent valid is not to decide a hypothetical case. "

I'll again leave it to the legal scholars to determine whether Scalia was being unfair in his criticism, though I will say as to the examples I classified as "Accusations of Outright Disingenuousness" even a layperson can safely say that Thomas was playing a little fast and loose with the facts.

It may also be that Scalia is always this harsh in the opinions he writes and I just haven't noticed. Nevertheless, it seems to me that while Scalia is often quite liberal with the sanctimonious rhetorical flourishes in an attempt to make the opposition seem silly or stupid, it is less obvious to me that he often accuses them of misconstruing the facts.