Tuesday, April 20, 2010

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LawPundit Excerpts of and Comments to the ORAL ARGUMENTS in the BILSKI case, which currently awaits decision by the United States Supreme Court

This posting provides LawPundit excerpts and comments to the ORAL ARGUMENTS in the BILSKI case, soon to be decided by the United States Supreme Court (we have added the links in the excerpted text). Although much of the patent industry seems to expect the machine-or-transformation standard in Bilski to be overturned, we view the course of oral argument to suggest that the Supreme Court could well affirm the Federal Circuit limitation of patents in Bilski by pointing to the context-defined definition of "process" in the patent law as historically applying to machines and transformative inventions, it being the job of Congress -- if it so desires -- to extend that definition of "process" beyond those bounds -- an extension which, in view of the desperate need for real patent reform, is legislatively in fact not desirable.


[LawPundit comment: The Court starts with the question of what is patentable, i.e. what are useful arts? Historically, these were tied to machines and physical inventions. "Processes" not tied to machines or physical transformation were not patentable.]

MR.JAKES: ...the Federal circuit has created a new test just for processes that are not found in the statute or required by this Court's decisions.
JUSTICE SCALIA: Of course, the government says that the -- that the term on which it hangs its hat is the term “useful arts” and that that meant, originally, and still means manufacturing arts, arts dealing with workmen, with -- you know, inventors, like Lorenzo Jones, not -- not somebody who writes a book on how to win friends and influence people.
What’s wrong with that analysis, that that's what "useful arts" meant, that it always --always was thought to deal with machines and inventions?
[LawPundit comment: The Court moves to the issue that not everything that is "useful" is patentable]

JUSTICE BREYER: ... every businessman -- perhaps not every, but every successful businessman typically has something. His firm wouldn't be successful if he didn't have anything that others didn't have. He thinks of a new way to organize. He thinks of a new thing to say on the telephone. He thinks of something. That's how he made his money.
And your view would be -- and it's new, too, and it's useful, made him a fortune -- anything that helps any businessman succeed is patentable because we reduce it to a number of steps, explain it in general terms, file our application, granted?
MR. JAKES: It is potentially patentable, yes.

[LawPundit comment: One way to define "useful arts" is to look to the original purpose of the Constitution]

JUSTICE BREYER: Okay. Well then, if that were so, we go back to the original purpose of the Constitution. Do you think that the Framers would have wanted to require anyone successful in this great, vast, new continent because he thinks of something new to have had to run to Washington and to force any possible competitor to do a search and then stop the wheels of progress unless they get permission?
Is that a plausible view of the patent clause?

[LawPundit comment: If not everything that is useful is patentable, then what is a reasonable limitation?]

JUSTICE SOTOMAYOR: So how do we limit it to something that’s reasonable? Meaning, if we don't limit it to inventions or to technology, as some amici have, or to some tie or tether, borrowing the Solicitor General's phraseology, to the sciences, to the useful arts, then why not patent the method of speed dating?
[LawPundit comment: Even if the Supremes are "nervous" about the Federal Circuit new standard in Bilski, what else is there? a limitation on the patentability of abstract ideas only?]

JUSTICE BREYER: ... suppose I were to take the view that this is way too far, that that’s not the purpose of the statute. Suppose for hypothetical's sake I'm still a little nervous about that -- that circuit's decision there. Have you any suggestion for me?
MR. JAKES: I think that we should go back to the first principles that were enunciated in Diehr and other cases, that abstract ideas per se are not patentable. That's my position, and what I would advocate in this case and in any case, as long as you're--
CHIEF JUSTICE ROBERTS: What -- I'm looking at your claim 1, in Joint Appendix page 19 to 20. How is that not an abstract idea? You initiate a series of transactions between commodity providers and commodity consumers. You set a fixed price at the consumer end, you set a fixed price at the other end, and that's it.
I mean, I could patent a process where I do the same thing. I initiate a series of transactions with sellers. I initiate a series of transactions with buyers. I buy low and sell high. That's my patent for maximizing wealth.
I don't see how that's different than your claim number 1.
MR. JAKES: If that was a novel and unobvious method, then it should be patentable, but it's eligible as subject matter --
CHIEF JUSTICE ROBERTS: Well, but your claim 1 it seems to me is classic commodity hedging that has been going on for centuries.
MR. JAKES: Your Honor, if that were true, then we should run afoul of the obviousness provision under section 103. Now, the Patent Office did initially allow some of our claims over the prior art.
[LawPundit comment: Beyond abstract ideas the petitioner volunteers "physical steps" in a process as making abstract ideas patentable, as if picking up a phone were a "physical step", but of course, the taking of "action" upon an initial abstract idea does not make it "patentable"]]

MR. JAKES: ... I think even the Patent Office agreed that there are physical steps in our method here. And in the insurance method --
CHIEF JUSTICE ROBERTS: What -- I'm sorry. Just -- what are the physical steps? Initiating a series of transactions between commodity provider and market participants?
MR. JAKES: That would be one.
[LawPundit comment: Petitioner claimed that a "technology" or "technology and science" limitation on patentability would not work in the US, although Europe manages to do that.]

JUSTICE GINSBURG: Isn't that the basis on which the patent law rests in Europe, in other countries? They do not permit business method patents. It has to be tied to technology, to science or technology. So if other systems are able to work with the notion of technology-based, why not ours?

[LawPundit comment: What are the precedents for making business methods patentable?]

JUSTICE STEVENS: May I ask this question? What do you think the strongest case from our jurisprudence is that supports your position?
MR. JAKES: I would say it's the Diehr case.
MR. JAKES: Diehr. Diamond v. Diehr.
JUSTICE STEVENS: That's, of course, nothing like this patent.
MR. JAKES: No, it's not, but I think it --
JUSTICE STEVENS: There's language in the opinion.
MR. JAKES: It outlines the general principles --
MR. JAKES: -- and also tells us that there are only these specific things that are not included within the subject matter.
JUSTICE STEVENS: But is it correct that there's none -- none of our cases has ever approved a rule such as you advocate?
MR. JAKES: I don't think this particular subject matter has been ruled on by the Court.
Now, in Dann v. Johnston in the seventies, there was a case that could have been decided on the grounds that it was a method of doing business, and instead the Court chose to decide that case based on obviousness. And really –-

[LawPundit comment: Business methods were not patentable historically. Scalia and the horse whisperers.... We often criticize Scalia but he is a terrific Justice (regardless of whether one agrees with him or not) with a no-nonsense sensibility.... here is an example of that.]

JUSTICE SCALIA: You know, you mention that there are all these -- these new areas that didn't exist in the past because of modern business and whatnot, but there are also areas that existed in the past that don't exist today. Let's take training horses. Don't you think that -- that some people, horse whisperers or others, had some, you know, some insights into the best way to train horses? And that should have been patentable on your theory.
MR. JAKES: They might have, yes.
JUSTICE SCALIA: Well, why didn't anybody patent those things?
MR. JAKES: I think our economy was based on industrial process.
JUSTICE SCALIA: It was based on horses, for Pete's sake. You --
JUSTICE SCALIA: You would really have thought somebody would have patented that.

[LawPundit comment:The Court heads the discussion toward the "transformation" test]

JUSTICE KENNEDY: In the Diehr case, the Court said that in the end, the abstract idea must be in a process that, oh, implements a proposal that the patent laws were designed to protect, which brings you almost back to the beginning. You don't --
MR. JAKES: It does.
JUSTICE KENNEDY: You don't know much from that language. But that was something that you could touch, that you could see, that looked like a machine; the substance was different before the process and after the process. And -- and none of that's applicable here. It's --
MR. JAKES: The Diehr invention was an industrial process of the conventional type, because it was a method of curing rubber. But today the raw materials are just as likely to be information or electronic signals, and to simply root us in the industrial era because that's what we knew I think would be wrong and contrary to the forward-looking aspect of the patent laws.
JUSTICE SOTOMAYOR: Well, isn't the manipulation of electronic signals a substance that’s different in kind from just a method of how to go about doing business or a method of how to approach a particular problem?
Isn't there -- isn't that what the Federal Circuit was trying to explain, which is that there has to be something more substantive than the mere exchange of information; that it has to involve -- it used the word "transformation." It hasn't defined the outer limits of what it means by that.
MR. JAKES: I think there is a difference. But by rigidly looking at that transformation test, what you do is you exclude lots of other things where the transformation is not required --
[LawPundit comment: The Court now tacks in the direction of if there is no "transformation" test, then the mere exchange of information would be patentable. But can patent protection justifiably be extended from "machines" to raw "information" -- and is there any way to know that it would not do more harm than good? ]

JUSTICE BREYER: There are actually four things in the patent law which everyone accepts. There are two that are plus and two that are minus. And the two that are plus is by giving people a monopoly, you get them to produce more. As you said, you get them to disclose.
The two minuses are they charge a higher price, so people use the product less; and moreover, the act of getting permissions and having to get permission can really slow things down and destroy advance. So there’s a balance.

In the 19th century, they made it one way in respect to machines. Now you're telling us: Make it today in respect to information. And if you ask me as a person how to make that balance in respect to information, if I am honest, I have to tell you: I don't know. And I don't know whether across the board or in this area or that area patent protection will do no harm or more harm than good.
[LawPundit comment: Congressional patent legislation in 1952 envisioned a patent world involving machines and technological transformation, not information or code]

JUSTICE SOTOMAYOR: And so it begs the question, because we go around in a circle: What does "process" mean in a patent law that was passed in 1952 that had one set of manufacturing and other items that are technologically tied and this is not? So how do we discern Congress's intent, other than by the use of the word "process" in context? [emphasis and color added by LawPundit]
[LawPundit comment: The Court moves to the discussion of the example of Morse code, where the code itself was not patented, only its application to machines]

JUSTICE SOTOMAYOR: Morse's code was not obvious, and yet --
MR. JAKES: No, it wasn't.
JUSTICE SOTOMAYOR: As I understand that case, the only thing patented was the use of his code with respect to the telegraph machine that he proposed. The Patent Office rejected -- maybe I am reading the case wrong, but it rejected all of the claims except those that related to the use of the code with a particular machine.
MR. JAKES: It -- it does say used in connection with telegraphy.
[LawPundit comment: The Court then moves to the transformation example of Alexander Graham Bell and the telephone]

JUSTICE SCALIA: Well, it was -- it was transforming sound into electrical current and then at the other end electrical current back into sound. I mean it met the transformation test, didn't it?
MR. JAKES: It might have. It might have.
JUSTICE SCALIA: It clearly did.
MR. JAKES: Well, it's not that clear from the Federal Circuit's transformation test whether that would apply or not, because although the Federal Circuit has said transformation of data might qualify, it said it has to represent something physical, something -- a real object. And sound doesn't necessarily have to be that. Sound can be generated artificially. So --
JUSTICE SCALIA: Sound -- sound is not physical, and electric current is not physical?
MR. JAKES: I think electric current is physical.
JUSTICE SCALIA: Yes, I think so.
JUSTICE SCALIA: Sound is, too.
MR. JAKES: It can be, but when it's transmitted over a wire, it's not. It's something else. It's an electrical current then.
JUSTICE SCALIA: Sound is not transmitted over the wires. Sound has been transformed into current, and current is transmitted over the wire and then transformed back at the other end into sound.
MR. JAKES: Yes, and I would agree --
JUSTICE SCALIA: I think it clearly --clearly would have been covered by -- by the test the government --


[Stewart starts out by distinguishing the patents of Samuel Morse and Alexander Graham Bell from inventions that do not deal in the realm of the physical, and sets out the standard applied by the Federal Circuit in this case]

MR. STEWART: Let me start by following up on the discussion of the Morse and the telephone cases, because it's certainly our view that those would come out the same way under our test as -- as they actually did in practice.
JUSTICE SCALIA: I certainly hope so.
The reason that Bell's method was patentable was that it operated in the realm of the physical. Bell had devised a process implemented through machines by which sound was transformed into electronic current....

Innovations as to new techniques of public speaking, new techniques of negotiations, techniques that go to the substance of what is said may be innovative. They may be valuable. They are not patent eligible because they don't deal in the realm of the physical....
...all that the Federal Circuit has really said is that to have a patent-eligible process you have to identify some link to a machine or a transformation of matter... [emphasis added by LawPundit]

[LawPundit comment: But the Court wonders if such a broad standard is necessary and if one could not simply say that business methods are not patentable.]

JUSTICE SOTOMAYOR: How about if we say something as simple as patent law doesn't cover business methods, instead of what the Federal Circuit has begun to say, which is technology is tied to a machine or a transformation of the substance? But I have no idea what the limits of that ruling will impose in the computer world or the biomedical world. All of the amici were talking about how it will destroy industries. If we’re unsure about that, wouldn't the safer practice be simply to say it doesn't involve business methods?

MR. STEWART: I think that would be incorrect, and it would create problems of its own....

I think that the invention that was held to be patent eligible in State Street is commonly described as a business method, even though it was held to be patent eligible as a machine rather than as a process....

JUSTICE SCALIA: Also you could say business methods apart from machines are not patentable. How about that?

MR. STEWART: If the Court said that in the limited area of business methods, if there is no machine or transformation, there is no patent eligibility --
JUSTICE BREYER:  Okay. Now, you say what is it they have done in this case in the Federal Circuit? They have pulled back. That's a mood. That's a mood. They’ve pulled back insofar as they are pulling back from business methods, not machines, dah, dah, dah, dah, dah. Okay? You say we see no problem with that. [LawPundit note quoting the Wikipedia: "To reflect the sound of Morse code, practitioners began to vocalise a dot as "dit", and a dash as "dah" ".]

Now, they have left much unresolved. One, transformation; how broad or narrow is that? We don't know. Many people's problems will be solved if it's either broad on the one hand or narrow in the other.

Two, are you automatically patented -- in the patent statute, if you just sort of reduce this to a machine by adding a computer on at the end? They've flagged that as a problem. They haven't answered it. Could there ever be a situation where it doesn't meet this test but still is patentable? We’re not sure....
[emphasis and color added by LawPundit]

Do you see what I'm trying to do? I'm trying to note the things that have been raised in these 80 briefs insofar as possible, say there’s a lot there for the future that we can't really decide, but say as a pull back, okay. [Link, color and emphasis added by LawPundit]

[LawPundit comment: The Court now turns to the machine test element of the Federal Circuit's decision in Bilski]

CHIEF JUSTICE ROBERTS: Mr. Stewart, I thought I understood your argument up until the very last footnote in your brief. And you say this is not --simply the method isn't patentable because it doesn't involve a machine. But then you say but it might be if you use a computer to identify the parties that you are setting a price between and if you used a microprocessor to calculate the price. That's like saying if you use a typewriter to type out the -- the process, then it is patentable. I -- I -- that takes away everything that you spent 53 pages establishing.
[LawPundit comment: Stewart answers with an example of an interactive computer application]

MR. STEWART: I think an -- an interactive computer technique, one in which you sign on and can find people without tracking them down specifically, can simply identify yourself on the Website as somebody who is interested in engaging in a particular transaction and a potential counterparty can find you, is different from the Yellow Pages.

But I guess the fundamental point I would make is -- and this is really responsive to the second part of Justice Breyer's question -- I think it is both a virtue and a vice of the test that the Federal Circuit has announced and that we are advocating that it doesn't solve all the hard questions. That is, the Federal Circuit has said since this particular patent applicant didn't identify any machine or any transformation that would be necessary to the accomplishment of its method, that person is out of luck, and, therefore, it's inappropriate for us to go on to decide kind of the precise level of substantiality that a machine or transformation must play --
[LawPundit comment: The Court also points out that there is also the problem that the machine-or-transformation test might block legitimate future patents that are currently not imaginable -- how is that problem to be handled?]

JUSTICE SOTOMAYOR: Now, if it veers the other way, which is by saying that we exclusively rely on the machine-or-transformation test, that we're precluding applications of the patent law in those fields, the things we can't imagine. Once you announce an exclusive test, you're shoe-horning technologies that might be different.

 MR. STEWART: I guess I would say a couple of different things. The first is that it seems unlikely, even with new and rapidly emerging technologies, that somebody would come up with a system that seems for patent purposes analogous to the inventions that have been patent eligible in the past that didn't involve any machine and that didn't involve any transformation.
JUSTICE SOTOMAYOR: All right. So help us with a test that doesn't go to the extreme the Federal Circuit did, which is to preclude any other items, something we held open explicitly in two other cases, so we would have to backtrack and say now we are ruling that we were wrong, and still get at something like this?
MR. STEWART: Well, I think the Court could say -- could do essentially what was done in Benson and Flook, namely acknowledge that there had never been a case up to this point in which a process had been held patent eligible that didn't involve a machine or a transformation. It could leave open the possibility that some new and as yet unforeseen technology could necessitate the creation of an exception. [emphasis added by LawPundit]

[LawPundit comment: The Court now wants to know how the machine-or-transformation test came into being -- this would seem to be a critical question -- and is elaborated further below]

JUSTICE GINSBURG: Mr. Stewart, did you --did the government put forward this machine-or-transformation test? Was that your test, or was it the Federal Circuit's on its own?
MR. STEWART: The Federal Circuit, sua sponte, set the case for hearing en banc. I believe the case had been argued to a panel, but had not been decided, and the Federal Circuit set the case for reargument en banc, posed a number of questions to the -- the parties and the government did advocate the machine-or-transformation test.
[LawPundit comment: The Court also asks whether a technology or technology of science test, as is e.g. used in Europe, might not be a better solution?]

JUSTICE GINSBURG: You did -- and if you read Judge Mayer's opinion, it has a simplicity to it. It says, if it's technology, then its within the realm of patent, and if it's not technology, it isn't. If it’s based on science or technology -- and that seems to be what is used in other places.
First, people could dispute whether particular advances are properly regarded as technological advances, and, second, we would still have the difficult problems that the Chief Justice has referred to, where you have a process that is described as involving technology at some step along the way, and courts will still have to make the determination, is that a sufficiently substantial step to make the process, as a whole, a technological one.
So I don't think that, by adopting a technological arts test, the Court would avoid the difficulties that it has appropriately identified with the machine-or-transformation test.

[LawPundit comment: Stewart then points out that the machine-or-transformation test was not simply forged out of thin air but was abstracted, already in the year 1971, from Court decisions.]

The other thing I would say about the machine-or-transformation test is this is not a government position of recent vintage; that is, the government's brief to this Court in Gottschalk v. Benson -- or its reply brief, which was filed around 1971 --basically said, although this Court has never announced machine or transformation of the test, that is the principle that can be abstracted from the totality of the Court's decisions. [emphasis added by LawPundit]

[LawPundit comment: Now the Court goes to issue of examining whether  the machine-or-transformation test when applied to the State Street case would give the same result. As written at the Wikipedia:
"State Street Bank and Trust Company v. Signature Financial Group, Inc., 149 F.3d 1368 (Fed. Cir. 1998), also referred to as State Street or State Street Bank, was a decision of the United States Court of Appeals for the Federal Circuit concerning the patentability of business methods. State Street for a time established the principle that a claimed invention was eligible for protection by a patent in the United States if it involved some practical application and, in the words of the State Street opinion, "it produces a useful, concrete and tangible result." With the 2008 decision In re Bilski,[1] however, the useful-concrete-tangible test was jettisoned. According to the Bilski opinion, the "'useful, concrete and tangible result inquiry' is inadequate," and the portions of the State Street decision relying on this inquiry are no longer of any effect under US patent law. The Supreme Court granted certiorari in In re Bilski and oral argument was held on November 9, 2009.[2][3]"

The issue here then is whether a "business method" such as in State Street can in fact be patented, as long as it meets the machine-or-transformation test.]

JUSTICE KENNEDY: Was the State Street case a machine-or-transformation test?
MR. STEWART: Oh, it would come out the same way. I mean, State Street Bank --
JUSTICE KENNEDY: That's what I thought. And is it -- is it machine or transformation, in your view?
MR. STEWART: Well, it was machine -- that is, in State Street Bank, the claim was not to a process within the meaning of section 101. The claim was not to a method of accomplishing things by means of a computer, which would be, potentially, a process. It was to the computer itself, the programmed computer, that the innovation in State Street Bank was that the devising of new computer programs that allowed the computer to perform various tasks in association with the carrying out of the hub-and-spokes investment -- investment method. And, certainly --
CHIEF JUSTICE ROBERTS: So what did that --what did that transform?
MR. STEWART: It didn't transform anything, but it would fit -- the transformation part would be irrelevant because the machine-or-transformation test is, in our view, the appropriate rubric to apply in construing the statutory term process, that is, when the person doesn't say, I have invented a new machine, but, rather, says, I've identified a new process for accomplishing things.
JUSTICE STEVENS: I don't understand why that isn't just the application of a process, which --which is not itself patentable subject matter, to a particular machine that can use the process --
JUSTICE KENNEDY: That's -- that's a problem I have.
JUSTICE BREYER: So I thought you were saying that the correct argument for the people attacking the patent in that case was to say, this is not a machine. The machine there is a computer. This is a program that changes switches, and that is a different process for the use of the machine.

Now, whether that process is or is not patentable depends upon a lot of things that we don't have to go into in this case. Is that right?
MR. STEWART: But I -- but I think the argument that has been made with success -- and PTO agrees with this -- is that programming a computer by means of software to produce -- to perform new functions can create a novel --

JUSTICE BREYER: But then all we do is every example that I just gave, that I thought were examples that certainly wouldn’t be patented, you simply patent them. All you do is just have a set of instructions for saying how to set a computer to do it. Anyone can do that. Now, it's a machine.

So all the business patents are all right back in. Now, that -- what I think we were looking for was -- or at least I was -- was why that isn't so, and how you are going to later, down the road, deal with this situation of all you do is you get somebody who knows computers, and you turn every business patent into a setting of switches on a machine because there are no businesses that don't use those machines.
[LawPundit comment: Does the court have a viable alternative to the machine-or-transformation test?]

JUSTICE GINSBURG: But this case could be decided without making any bold step --
MR. STEWART: Again, I don't -- I don't think it would be a bold step to say that machine or transformation is the test. That is, we have gone for more --
JUSTICE GINSBURG: But even the Federal Circuit didn't say it was the test. It said it is for now. We know that things that we haven't yet contemplated may be around the corner, and when they happen, we will deal with them.
MR. STEWART: And we would -- we would be entirely content with a ruling like that.
The other point I would make about the programmed computer is, to follow up on my television and DVD example, that when you claim a machine or a manufacture, as the committee reports to the 1952 Act said, those words are broad. They encompass everything under the sun that is made by man. And so a television is indisputably a machine, even though its function is not to transform matter. It's only when you get to the term "process" that you are left with -- that the machine-or-transformation test kicks in.

And really, the argument on the other side is: The term "process" in ordinary speech is extremely broad. It can literally be read to encompass any series of steps, whether or not linked to technology, whether or not linked to a machine or transformation. And the other side argues you should construe it that way in the patent statute.

I guess the -- the three reasons we would say that's not so are, first, under the canon of noscitur a sociis, it’s appropriate to construe the term "process" in conjunction with the other terms. Those other terms are broad, but they all refer to physical objects that don't exist in nature and are created by man. And a huge array of very productive, innovative activity doesn't culminate in the creation of any new physical substance, and the word "process" surely was intended to add something, but it would be quite strange to construe the word "process" to encompass the whole range of human endeavor when the other words are limited to the creation of new things in the physical.

The second thing is that when this Court in the past has explained the term "process," it's always linked it to the operation of machines, as in the telephone cases and in Morse, or to the transformation of matter in ways that may not be dependent on a particular machine.

And the third thing I would say is that in a sense, there’s a strong “dog that didn't bark in the night” quality to our argument; that is, even though the Court has never said in so many words that a method of allocating risk by contract is a patent-eligible process, the economic history of this country really would have been fundamentally different if it had been believed from the outset that innovations of this character could be patented and potential competitors could be foreclosed from engaging in the same method.


[LawPundit comment: uneventful]

Christian Legal Society (CLS) vs. Martinez (Hastings Law School) : Oral Argument Transcript: : Supreme Court of the United States

The oral argument transcript in the 1st Amendment case of the Christian CLS student group against Hastings Law School is up at:

Christian Legal Society (CLS) vs. Martinez (Hastings Law School) : Oral Argument Transcript: before the Supreme Court of the United States, April 19, 2010

 [LawPundit comment: The Oral Argument by Mr. McConnell for the Petitioner CLS starts out with the Court perturbed by the unclarity of the case due to joint stipulations of fact by the parties that do not accurately portray the actual facts, especially as to the policies of Hastings Law School]

JUSTICE KENNEDY: ... it's a much different case if Hastings treats the CLS differently than it treats the Democratic and Republican Club.... Frankly it's a much easier case for you. But it's -- it's frustrating for us not to know what kind of case we have in front of us.

JUSTICE ALITO: Mr. McConnell, when I read -- when I read the papers that Hastings submitted to the district court at the same time that the joint stipulation was submitted, I saw one reference after another to an allegation that Hastings was applying its policy in a discriminatory manner, that it was not in fact insisting that all registered student organizations admit all applicants. And when I read their brief in the Ninth Circuit I saw that point reiterated again and again.
So that led me to believe that what was stipulated was not that in fact they had a policy which they enforced under which anybody who applied to any group would be admitted, but that this was what Dean Cane had announced. That was the stated policy, but not necessarily the actual policy that was employed. And that was the argument it seemed to me that CLS was making; isn't that correct?

MR. McCONNELL: That's entirely correct, Justice -- Justice Alito.
[LawPundit comment: McConnell goes on the offensive to point out that the policy of Hastings Law School is overly broad and conflicts with its diversity purpose.]

MR. McCONNELL: ... the policy is I think blatantly unconstitutional. It is manifestly overbroad with respect to any purposes stated. And of course, in Healy v. James this Court held that any restriction on a student speech forum may be no more extensive than is required by its purposes. It is also a frontal assault on freedom of association. Freedom of association is the right to form around shared beliefs....

MR. McCONNELL: ... restrictions on a designated public forum must be reasonable in light of the purposes of the forum. The purpose of the forum is set forth in joint stipulation number 8. It is to promote a diversity of viewpoints among registered student organizations. If the student organizations are not allowed to have a coherent set of beliefs, there can be no diversity among them.

[LawPundit comment: Justice Sotomayor refers the position of educational institutions in this case generally that policies like those of the Hastings Law School on anti-discrimination are entitled to deference and should not be "constitutionalized"]

JUSTICE SOTOMAYOR: But this sounds like a debate over whether the policy as the school believes it should be implemented is not a good one. But isn't that their choice? Don't we give deference to an educational institution in terms of the choices it makes about affecting its purposes? And the purpose here is we don't want our students to discriminate.

MR. McCONNELL: There is a stipulation as to what the purpose is, and the purpose is to promote a diversity of viewpoints among registered student organizations.

MR. McCONNELL: "Hastings seeks to promote a diversity of viewpoints among registered student organizations."
And note how destructive an all-comers policy directed on belief is toward -- toward that. That means that if, for example, there is an NAACP chapter, it would have to allow a -- a racist skinhead to sit on -- in on its planning meetings. That means that if there is an environmentalist club that has a demonstration in Sacramento in favor of cap-and-trade legislation, they would have to allow ...
McCONNELL: -- a global warming skeptic to -

JUSTICE GINSBURG: It may be an ill-advised policy, but the school says: It's our policy, it's working fine, and all the -- the hypotheticals about sabotage, takeover, they haven't happened.

[LawPundit comment: The problem of "various" Hastings policies raises its head]

MR. McCONNELL: They haven't happened because this policy came into being -- was announced for the first time in 2005, so there couldn't possibly be any -- any record of that.
JUSTICE SCALIA: This -- this was not the policy on the basis of which CLS was excluded; is that correct?
MR. McCONNELL: That's correct, it was not.
JUSTICE SCALIA: It -- when they were refused participation in the -- in the student organization program, they were not told about the all-comers policy.
MR. McCONNELL: That's correct. Joint Stipulation No. 40 states clearly that the -- that the -- that they were informed, and I quote: "They were informed that CLS bylaws were not compliant with the religion and sexual orientation provisions of the Nondiscrimination Policy."
JUSTICE ALITO: And was there any written document memorializing this policy prior to the time when the former dean gave her deposition?
JUSTICE ALITO: And is the -- is the policy as articulated by the dean in her deposition the same as the policy that Hastings now claims it has in its brief?
MR. McCONNELL: I don't think so. Every time the policy is mentioned, it seems to morph into something else. When the dean announced in the depositions, she said all students may participate on the -- in all activities, period, full stop. Now we find out in their brief, well, their -- groups can have conduct limitations, they can require dues, they can have attendance requirements, they can have competitive contests to see whether they get in.
This -- this policy is -- it changes with every wind.
And -- but the fundamental problem with this -- with this is what -- what this Court stated in Velazquez v. Legal Services Corporation, that you cannot allow -- you cannot allow the terms of the policy just to say that whatever their policy is, that that determines the contours of the program, because that would render the First Amendment a -- a nullity.

[LawPundit: the Oral Argument now turns to the issue of the 1st Amendment]
JUSTICE GINSBURG: Mr. McConnell, let's say it is the belief of this group, based on their reading of the Bible, that only white men can lead the Bible studies, can become officers of the group, and that's based on their fundamental belief that that's what the Bible instructs. On your view, must Hastings give this organization status as a recognized student organization?
MR. McCONNELL: No, Justice Ginsburg. Our position is it is unconstitutional to -- to prohibit groups to form around beliefs but not around status.
JUSTICE GINSBURG: But the belief is -- this is the belief.
MR. McCONNELL: They can insist that -- that everyone who participates in the group have that belief, and that, as Justice Scalia said, may mean it's going to be a very small group. But they cannot discriminate on the basis of status. But belief -- as this Court said in Cantwell v. Connecticut, belief, the freedom to believe, is absolute -
JUSTICE SCALIA: The written policy -- when it forbids discrimination on the basis of sexual orientation was complied with by CLS because it would not discriminate on the basis of orientation, only on the basis of belief.
MR. McCONNELL: That's correct.
JUSTICE BREYER: If -- if a homosexual person said, I want to belong to this club, and I believe in its principles, I don't believe in sexual relationships before marriage, and that's why I want to work for homosexual marriage, which I do, so my consistency there, is that person -- I am consistent in what I work for, what I believe, and on -- as far as premarital sex is concerned, it's totally 100 percent with your organization that you are representing; would they admit that person or not?
MR. McCONNELL: Yes. There is a joint stipulation to that effect, No. 34.

[LawPundit comment: the Oral Argument now turns to the issue of the denial -- or not -- of benefits to CLS by Hastings and the 1st Amendment consequences]

JUSTICE SOTOMAYOR: You keep talking about being forced to let people in. And this is where I'm a little bit confused by your yellow brief.
The school has taken the position that any group can apply to use its facilities; priority and funding, et cetera, will only go to recognized student groups. But your group is not being excluded or ostracized completely from the school....

MR. McCONNELL: ... Justice Sotomayor, I believe what we consistently say is that we have been denied the right to meet on campus and that is completely true.
Justice Sotomayor, even the access to campus communications is absolutely essential, as this Court said in the -- in Healy v. James. We are barred from access to the -- to Hastings' e-mail system; we can't post notices on the usual bulletin board; we are left out of the weekly -
JUSTICE SOTOMAYOR: There are bulletin boards. There are other ones.
MR. McCONNELL: There -- there is -- there are ones for the -- for campus and student groups, and then there is another one for community groups. We are allowed to post on the community group, but we are not allowed to post on the boards that -- that students look to for where student activities occur.
We are left out of the -- a very important point -- the student organization fair at the beginning of the year where groups introduce themselves to the 1L's as they -- as they come in.

MR. McCONNELL: I only cite Cantwell for the proposition that belief is absolute.
JUSTICE KENNEDY: No. No. And Cantwell said that belief is central to -- to religions and that people would disagree. But that's precisely why Hastings might argue to us that -- that this is inconsistent with their idea of what this forum is. And if -- will you just address that, please?
MR. McCONNELL: I would address it. The forum -- the purposes of the forum are undisputed. They are to provide a diversity of expression among student groups. Their policy disserves the purpose of the forum and therefore cannot be regarded as reasonable in light of that. And what is more, what they have done is - it's also not reasonable because it's independently unconstitutional. What they have done is they've said you may not have fundamental freedom of association or if you do we will withdraw an otherwise available benefit from you.
As recently as the unanimous decision of this Court in FAIR v. Rumsfeld, the Court reiterated the -- the now I think 100-year old principle that constitutional rights may not be penalized by the withdrawal of benefits any more than they can by -- by direct prohibition.

[LawPundit comment: We now turn to Oral Argument by Mr. Garre for the Respondent Hastings Law School -- Garre starts out on the defensive from the very beginning as the problem of the various policies of Hastings Law School again raises its head]

MR. GARRE: Thank you, Mr. Chief Justice, and may it please the Court:
This case was decided by both courts below on the premise, which is not dispute in any point in the petition for certiorari, that Hastings reserves the funding and benefits that go to student groups that obtain school recognition to groups that choose to admit all students regardless of the status or their beliefs.
CHIEF JUSTICE ROBERTS: Well, then why do you have -- why do you have a policy, a written policy -- you don't have a written policy that says anything about all-comers. You have got a written policy that says you can -- you can't discriminate on the basis of only one type of belief, religious belief.

[LawPundit: the Court now turns to the fact that the various policies are not applied uniformly by Hastings Law School]

JUSTICE ALITO: ...hasn't it been CLS's position from the very beginning of this case that Hastings has not in fact required every group to admit any student who applies? Don't they say that over and over again in their district court papers, in the court of appeals briefs, and in the cert petition?
MR. GARRE: If -- if they believe that that caused the school to adopt a different policy, they shouldn't have stipulated to the policy that they did. And they should have challenged at a minimum -
JUSTICE SCALIA: Well, they stipulated that the policy exists. They didn't stipulate that it is - is being faithfully applied by Hastings. What do you do about the -- the -- the two organizations' bylaws set -referred to in the -- in the Petitioner's brief, which clearly do -- conflict with the so-called all-comers policy?

CHIEF JUSTICE ROBERTS: ... they ... quote the bylaws of the National Lawyers Guild, which says: "Any member must agree with the objectives of the organization as set forth herein." That's not all-comers. That's a bylaw that restricts an organization according to its -- members can't join unless they sign on the dotted line that they believe in objectives of the organization.
MR. GARRE: There is a fundamental difference between a group that says people of a particular sexual orientation are not allowed to become members -
CHIEF JUSTICE ROBERTS: It has nothing to do with -
JUSTICE SCALIA: They don't say that.
CHIEF JUSTICE ROBERTS: It's got nothing to do with sexual -- well, I don't know the National Lawyers Guild, but they say you have got to agree with the objectives of the organization.
MR. GARRE: Justice Scalia, the district court made a -- may I?
CHIEF JUSTICE ROBERTS: No, start with mine.
MR. GARRE: Okay.
MR. GARRE: Mr. Chief Justice, as -- as Dean -- as director of student services testified, the fact that the bylaws may say we want students who are interested in our activities doesn't mean that the bylaws are excluding students who want to join. And there is a fundamental difference, again, between saying students that have these particular beliefs or status cannot become members in the group -
CHIEF JUSTICE ROBERTS: It seems to me that your position is continually evolving wherever the First Amendment pressure comes. You have got a written nondiscrimination policy. And then you say: Well, yes, but we use an all-comers policy. You have got an all-comers policy and then groups don't actually follow the all-comers policy, and you have another answer to that. It seems to me that we should go with -- why shouldn't we go with the written policy and the written bylaws?
[LawPundit comment: the critical problem of "selective application" of the policies is identifed]

JUSTICE SOTOMAYOR: What do we do with the selective application argument, which is what Justice Alito referred to and Justice Scalia, which is: It is troubling that some of these bylaws do limit their groups. La Raza limited it to people of Hispanic descent, and the Lawyers' Guild to people who adopt its -- its beliefs. What are we going to do with this selective application argument? It's in the case, isn't it? And if it is, what does it do to your policy?

MR. GARRE: Justice Sotomayor, this case wasn't litigated as a pretext case. If you look at the briefs in this case, the first time that the word "pretext" is used is in the reply brief in this Court.
It was litigated as a challenge, which is a serious challenge, to the constitutionality of an all-comers policy in this particular -
JUSTICE SCALIA: The two are connected, though, Mr. Garre. Frankly, one reason why I am inclined to think this is pretextual is that it is so weird to require the -- the campus Republican Club to admit Democrats, not just to membership, but to officership. To require this Christian society to allow atheists not just to join, but to conduct Bible classes, right? That's crazy.

[LawPundit comment: and then, the critical 1st Amendment question is posed, namely, what is the State's compelling interest for having these - various - policies that the Hastings Law School is enforcing against CLS?]

JUSTICE KENNEDY: ... why doesn't this just all work out? If the Christian Legal Society has these beliefs, I am not so sure why people that don't agree with them want to belong to them. What -- doesn't this all just work out?
MR. GARRE: Justice Scalia -
JUSTICE KENNEDY: Doesn't it work out that the Democrats, they don't want to go to the Republican club and run for officership anyway. So why -- what -what interest does this -- does the school have in this policing mechanism that it's imposing?
[LawPundit comment: that question by Justice Kennedy, the swing Justice on the Court, is the critical inquiry for the Respondents]
MR. GARRE: A number of things, Justice Kennedy. The first is the line-drawing issue that has been made clear during the first part of the argument this morning. If you're going -- they appear to take off the table race, and what they say, other status considerations. I'm not sure why that excludes sexual orientation.
But if you are going to allow religious groups, or any group, to draw exceptions for some people, then you have to determine where to draw the line. And I think a school can reasonably say: We don't want to get into this business at all; we want to allow all comers for all school-subsidized -JUSTICE ALITO: But you now say -- you now say in your brief that it is okay for a group to impose membership requirements that are neutral and not based on beliefs. Isn't that right?
MR. GARRE: That doesn't go to status or belief. If you are talking about attendance requirements or competition, those are merits-based requirements.
CHIEF JUSTICE ROBERTS: No, you are talking about La Raza background. As I understand it, the La Raza organization says you have to be of La Raza background to be a policy member of the organization.
 [LawPundit comment: so now Breyer asks, what should the Court do now on the Constitutionality issue, given the lack of facts about the actual Hastings policy implementations]

JUSTICE BREYER: What we have is a rule, a stipulation. And as I read it, to try to make sense out of it, it does seem to discriminate against organizations in respect to which intellectual purity would be important. You are going to have a harder time. The ones that don't care that much will have an easier time.
Now, in trying to judge the constitutionality of that, I first have no idea which these organizations are....

MR. GARRE: If the Court believes that, respectfully, we think it should dismiss the writ as improvidently granted. This case was litigated based on stipulations to avoid precisely these factual issues that we are now talking about for this first time before this Court.
Now, I think it is common ground -
JUSTICE GINSBURG: You do -- Mr. Garre, you did say that the evidence is the Dean's deposition. There is no prior evidence. But there are schools, including law schools, that have this policy. Is that not so?
MR. GARRE: That's true. Georgetown Law School does. Columbia Law School. Look, there is an amicus brief filed by 13 educational organizations representing thousands of colleges and universities across the country, including the association of Jesuit colleges and universities, saying that this is a not-uncommon and a reasonable policy. We are not saying it's the only approach that colleges can take in balancing the competing interests here. We are saying that the Constitution -
JUSTICE ALITO: Well, let's explore the constitutional implications of this policy. Suppose at a particular campus there is a great deal of anti-Muslim animus. And there is a small Muslim group; it has ten students. If the group is required to accept anybody who applies for membership, and 50 students who hate Muslims show up and they want to take over that group, you say: First Amendment allows that?
MR. GARRE: And there's -- as to the takeover hypothetical, there is no evidence that it has happened. Groups can take measures to prevent it. They can require attendance requirements before people become members. They can instruct -
CHIEF JUSTICE ROBERTS: That's not going to help if you have the 50 anti-Muslim students who want to take over the group.
JUSTICE ALITO: If an orthodox -- if an orthodox Jewish group or a Muslim group applied for recognition and the group said part of our beliefs is -one of our beliefs is that men and women should sit separately at religious services, would Hastings deny registration to that group? ...
MR. GARRE: If it was excluding students from that group on the basis of their beliefs or their status, then, yes, it would.
Hastings isn't in the business of second-guessing the -- the beliefs of -- of individual groups, and the whole point of the policy really is to stay out of this, to just have a blanket that is equally neutral.
JUSTICE ALITO: We have two amicus briefs from two orthodox Jewish groups and a brief from a Muslim group. So, your answer is that they could not be recognized under a Hastings' policy because of their religious beliefs regarding the way religious services should be conducted?
[LawPundit comment: and then the Chief Justice really puts the Respondents on the defensive, pointing out that the Constitution specifically singles out the freedom of religion as something which is inviolate -- and which, if we may say so -- can not be abrogated simply because of a blanket policy of Hastings Law School which allegedly makes their work easier for them]

CHIEF JUSTICE ROBERTS: ...gender or race is fundamentally different from religious brief. Gender and race is a status. Religious belief, it has to be based on the fundamental notion that we are not open to everybody. We have beliefs, you have to subscribe to them. And we have always regarded that as a good thing. That type of exclusion is supported in - in the Constitution. The other types of exclusion are not.
[LawPundit comment: Justice Stevens - we presume - realizes that a decision in this case based on Constitutional grounds means a loss for Hastings Law School and so he asks the following critical question, obviously looking for a solution which would otherwise better support academic institutions in their varied organizational policies]

JUSTICE STEVENS: May I ask one question? I'd like you to answer, and your opponent, too, do you think that in order to decide this case, we have to pass on the constitutionality of an all-comers policy?
MR. GARRE: Yes, that's the policy before this Court.

JUSTICE BREYER: -- my question is, if I can think of this policy -- but I tend to sympathize with your view that it's so hard to believe that they really hold it, maybe they do, I don't know about it -- what do I do with this case?
How can I say whether this, let's call it "hug your neighbor policy" is -- to put a label on it that's catchy -- how do I -- how do I evaluate that?

MR. McCONNELL: What you can say is that Healy v. James requires a substantial justification for exclusion of a student group from a registered student activity forum, and this is not a substantial justification; it is a silly justification. If it is silly, crazy and preposterous it is not even reasonable, let alone compelling or substantial.

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