Kimble v. Marvel Enterprises: Supreme Court Clarifies Intellectual Property Contracts in Spider Man Dispute
If you weren’t careful in drafting that patent royalty or licensing agreement, the Supreme Court just confirmed the intrinsic value of your cash flow stream is a lot smaller than you thought following its refusal to overturn an older decision from the 1960s.
That is particularly important for this community because intellectual property is a major source of passive income for several of the people who read this blog. It certainly played a crucial role in Aaron and my early years when we relied disproportionately on it and what we refer to as a form of synthetic equity. The legal, tax, and regulatory frameworks for patents, trademarks, copyrights, royalties, and other streams of cash is particularly important to investors who operate in this arena as seemingly small clarifications or modification in payout structures can mean the difference between lifetime financial independence and bitterness as a bigger, better capitalized rival enriched itself further on your work without adequate or fair remuneration.
In case you missed it, here’s what happened. Following the Horne v. Department of Agriculture decision, which was a major win for personal property right against government confiscation without compensation, the Supreme Court released its decision in a dispute involving Spider Man. The case: Kimble v. Marvel Enterprises. To save time, permit me to quote the summation of facts from the Supreme Court majority opinion, penned by Justice Kagan:
In 1990, petitioner Stephen Kimble obtained a patent on a toy that allows children (and young-at-heart adults) to role-play as “a spider person” by shooting webs—really, pressurized foam string—“from the palm of [the] hand.” U. S. Patent No. 5,072,856, Abstract (filed May 25, 1990). Respondent Marvel Entertainment, LLC (Marvel) makes and markets products featuring Spider-Man, among other comic-book characters. Seeking to sell or license his patent, Kimble met with the president of Marvel’s corporate predecessor to discuss his idea for web-slinging fun. Soon afterward, but without remunerating Kimble, that company began marketing the “Web Blaster”—a toy that, like Kimble’s patented invention, enables would-be action heroes to mimic Spider-Man through the use of a polyester glove and a canister of foam.
Kimble sued Marvel in 1997 alleging, among other things, patent infringement. The parties ultimately settled that litigation. Their agreement provided that Marvel would purchase Kimble’s patent in exchange for a lump sum (of about a half-million dollars) and a 3% royalty on Marvel’s future sales of the Web Blaster and similar products. The parties set no end date for royalties, apparently contemplating that they would continue for as long as kids want to imitate Spider-Man (by doing whatever a spider can).
And then Marvel stumbled across Brulotte, the case at the heart of this dispute. In negotiating the settlement, neither side was aware of Brulotte. But Marvel must have been pleased to learn of it. Brulotte had read the patent laws to prevent a patentee from receiving royalties for sales made after his patent’s expiration. See 379 U. S., at 32. So the decision’s effect was to sunset the settlement’s royalty clause.2 On making that discovery, Marvel sought a declaratory judgment in federal district court confirming that the company could cease paying royalties come 2010—the end of Kimble’s patent term. The court approved that relief, holding that Brulotte made “the royalty provision . . . unenforceable after the expiration of the Kimble patent.” 692 F. Supp. 2d 1156, 1161 (Ariz. 2010).
Footnotes
1 Petitioner Robert Grabb later acquired an interest in the patent. For simplicity, we refer only to Kimble.
2 In Brulotte, the patent holder retained ownership of the patent while licensing customers to use the patented article in exchange for royalty payments. See 379 U. S., at 29–30. By contrast, Kimble sold his whole patent to obtain royalties. But no one here disputes that Brulotte covers a transaction structured in that alternative way.
The Brulotte decision mentioned was Brulotte v. Thys Co., a case the Supreme Court decided on November 16th, 1964. The court, at that time, ruled:
The Constitution by Art. I, § 8 authorizes Congress to secure “for limited times” to inventors “the exclusive right” to their discoveries. Congress exercised that power by 35 U.S.C. § 154, which provides in part as follows:
“Every patent shall contain a short title of the invention and a grant to the patentee, his heirs or assigns, for the term of seventeen years, of the right to exclude others from making, using, or selling the invention throughout the United States, referring to the specification for the particulars thereof. . . . ”
The right to make, the right to sell, and the right to use “may be granted or conferred separately by the patentee.” Adams v. Burke, 17 Wall. 453, 84 U. S. 456. But these rights become public property once the 17-year period expires. See Singer Mfg. Co. v. June Mfg. Co., 163 U. S. 169, 163 U. S. 185; Kellogg Co. v. National Biscuit Co., 305 U. S. 111, 305 U. S. 118. As stated by Chief Justice Stone, speaking for the Court in Scott Paper Co. v. Marcalus Mfg. Co., 326 U. S. 249, 326 U. S. 256:
“. . . any attempted reservation or continuation in the patentee or those claiming under him of the patent monopoly, after the patent expires, whatever the legal device employed, runs counter to the policy and purpose of the patent laws.”
[snip]
In light of those considerations, we conclude that a patentee’s use of a royalty agreement that projects beyond the expiration date of the patent is unlawful per se. If that device were available to patentees, the free market visualized for the post-expiration period would be subject to monopoly influences that have no proper place there.
[Source]
The theory behind this philosophy, and the reasons the founders put restrictions on intellectual property, is easy to understand. Imagine if this were not the case and inventions never made it into the public domain! One example: Every light bulb manufacturer in the world would still need to pay royalties to the heirs of, or corporate successor to, Thomas Edison! More likely, the patent holder wouldn’t allow others to manufacture at all, but charge substantially inflated prices for light bulbs as they now had a monopoly on what has become a basic necessity. (It’s actually a bit more complex but you get the idea. Those of you who are interested in corporate conspiracies, look into the light bulb trusts that were setup around the world, giving early control to certain cartel members in certain geographic areas; cartel members who were held to planned obsolescence standards to make sure the products weren’t too reliable.) Stoves, bookcases, chairs … concepts that we inherited as a sort of shared intellectual toolbox from our ancestors would result in payments going to some sort of aristocracy as each and every new invention created a never-ending right to sue someone who might, purposely or accidentally, infringe upon something you happened to register with a government agency first. It would be an economic, social, and political nightmare. The trick is to strike a balance between permitting a long enough artificial monopoly that content and idea creators are compensated fairly, and short enough that the work makes it into the hands of everyone, who can improvise, build upon, modify, and improve it.
Inherent in this framework is the notion that you cannot license or sell what you do not own. The moment a patent enters the public domain, it belongs to everyone. To demonstrate the concept, imagine you tried to license the rights to fairy tale Hansel and Gretel. One of your family members agrees to pay you $100,000 a year. The IRS isn’t going to let it happen. They’re going to say the $14,000 per annum gift tax exclusion was exceeded by $86,000; that the transaction was a disguised gift because no exchange occurred so the differential needs to either be applied to the lifetime exclusion the “buyer”, in this case, has remaining in his or her estate, or a gift tax paid at present. It’s not a particularly difficult concept. The Brulotte court essentially clarified this, saying you can’t pay royalties to someone on property he, she, or it doesn’t own, meaning royalty agreements extending beyond patent expiration can’t exist. They are an impossibility as a matter of law.
What Kimble Was Hoping to Accomplish in the Marvel Case
What, then, were the people rooting for Kimble hoping to achieve? The goal was a full-out Lawrence v. Texas declaration as it pertained to Bowers v. Hardwick in the now-famous smack-down of a particularly bad past Supreme Court decision in which the majority declared, “Bowers was not correct when it was decided, and it is not correct today. It ought not to remain binding precedent. Bowers v. Hardwick should be and now is overruled.”; for the court to say, “We screwed up badly back in the 1960s, which economic history has subsequently shown, so we’re going to fix the mistake now.” Kimble believed that a private contract, entered into by the parties involved of their own free will for their mutual benefit, calling for a perpetual 3% royalty share to the creator in exchange for selling the then-valid and in force patent, was constitutional.
There were also matters of basic fairness. One can argue that the expectation of a perpetual payment was a core part of the valuation of the contract itself, without which he never would have agreed to give up the patent and in exchange for which Marvel benefited by having years of exclusivity, establishing dominance. There are economic arguments. For example, many products which might be manufactured on a test-market basis, which turn out to be huge hits, are only possible due to royalty sharing arrangements as no sane manufacturer would dump large up-front cash payments for unproven goods and services. If you own a toy company, you might agree to give a person a bit of cash plus a cut of sales for some new board game, but you’d never pay him millions of dollars before the first unit was sold as you might be lucky to sell five hundred copies. This risk-reward split is good for society. More products go to market. Companies, entrepreneurs, and investors can gamble on more ideas to see what gets consumer acceptance. If the product becomes a mainstay, the inventor gets a never-ending stream of checks alongside the manufacturer, who can’t just cut them off and keep all of the profits itself once some magic date has been crossed.
The decision was 5-4. The majority disagreed with Kimble, saying that even if it was unfair, it was not going to invalidate Brulotte for the sake of adhering to stare decisis; deferring to legal precedent for the sake of consistency, clarity, and stability. The court said that the arguments very well could be convincing, right even, but that it was the job of the legislature, not the courts, to change the patent laws to reflect those beliefs; to explicitly state that royalty streams negotiated at the time of valid patents could extend beyond patent expiration.
Justice Alito, who wrote the dissent, wasn’t having any of it. He thought the whole thing was nonsense, the court’s prior decision so glaringly bad that it needed to be overturned, and the idea that private parties couldn’t negotiate royalty agreements among themselves based on their own interpretation of the relevant market factors, even if it meant paying for something beyond the period at which it had entered the public domain, idiotic, saying:
The Court employs stare decisis, normally a tool of restraint, to reaffirm a clear case of judicial overreach. Our decision in Brulotte v. Thys Co., 379 U. S. 29 (1964), held that parties cannot enter into a patent licensing agreement that provides for royalty payments to continue after the term of the patent expires. That decision was not based on anything that can plausibly be regarded as an interpretation of the terms of the Patent Act. It was based instead on an economic theory—and one that has been debunked. The decision interferes with the ability of parties to negotiate licensing agreements that reflect the true value of a patent, and it disrupts contractual expectations. Stare decisis does not require us to retain this baseless and damaging precedent.
The Patent Act provides that a patent grants certain exclusive rights to the patentee and “his heirs or assigns” for a term of 20 years. 35 U. S. C. §§154(a)(1) and (2). The Act says nothing whatsoever about post-expiration royalties. In Brulotte, however, the Court held that such royalties are per se unlawful. The Court made little pretense of finding support for this holding in the language of the Act. Instead, the Court reasoned that allowing post-expiration royalties would subject “the free market visualized for the post-expiration period . . . to monopoly influences that have no proper place there.” 379 U. S., at 32–33. Invoking antitrust concepts, the decision suggested that such arrangements are “an effort to enlarge the monopoly of the patent by t[y]ing the sale or use of the patented article to the purchase or use of unpatented ones.” Id., at 33.
Whatever the merits of this economic argument, it does not represent a serious attempt to interpret the Patent Act. A licensing agreement that provides for the payment of royalties after a patent’s term expires does not enlarge the patentee’s monopoly or extend the term of the patent. It simply gives the licensor a contractual right. Thus, nothing in the text of the Act even arguably forbids licensing agreements that provide for post-expiration royalties.
Brulotte was thus a bald act of policymaking. It was not simply a case of incorrect statutory interpretation. It was not really statutory interpretation at all.
My Thoughts on Kimble v. Marvel Enterprises
I am so incredibly torn on this particular case for a number of reasons. This would not have been an easy decision for me were I on the court because I’m not even sure how I feel about intellectual property restrictions in general, let alone the proper interpretation of them in a constitutional framework. As someone who benefits tremendously from IP over the years, both directly and indirectly, my own incentives as a content creator and someone who invests in content creators makes me think they’re good things. On the other hand, a rich public domain has long been considered a fundamental human right to some degree; that you cannot own ideas as we all benefit from having them out there, accessible to us and we must, at some point, draw a line beyond which we say, “No. You can go no further.” Sure, it sucks for Kimble but 1.) He arguably should have known the law at the time he entered into a legal contract pertaining to it, 2.) It’s not like he’s going to live in poverty as he’s been paid more than $6,000,000 on top of the upfront roughly $500,000 he got at the start of the deal, and 3.) there’s a broader public policy issue at play, far beyond justice in this individual case.
For example, many, if not most, of Disney’s own hits were based on folk stories. The billions of dollars being made from Elsa and Anna dolls, DVDs, downloads, soundtrack sales, toys, backpacks, bedspreads, costumes, wigs, and more were inspired by The Snow Queen, a story originally titled Snedronningen and penned by Hans Christian Andersen in 1844-1845 after his romantic advances were rejected by a cold-hearted opera singer. Walt Disney has been dead for generations. At what point does his work, like Andersen’s, belong to everyone? How long should it be until Mickey Mouse is treated like The Snow Queen or The Little Mermaid? It’s an interesting problem with trillions of dollars in aggregate and cumulative economic activity at stake.
And where it gets really tricky? Software. The situation in technology at the moment (really for the past decade or two) is absurd. Major corporations, backed by cash from IPOs, private equity funds, and retained profits from existing operations, gobble up multi-billion dollar patent portfolios just to have some mechanism to sue any and every upstart that threatens their business; a terrible outcome for civilization that kills innovation, hurting us all. Of course, the legislature would be perfectly free to change the rules for software in isolation given the rapidity with which the industry changes (e.g., software patents could only last for 60 months or something). That may not be such a bad idea.
I just don’t know. My gut sides with Alito and the dissenters. If someone wants to willingly enter into a contract, they should be able to do it, even if it means they bear a legacy cost beyond which their competitors would bear in exchange for having the first rights to market. I also think the technical side of it matters, too, even though in a just society it probably shouldn’t. In the majority opinion, they think there is no real economic distinction from Brulotte, where the patent was licensed, and Kimble, where the patent was sold. I’m not sure I agree. Kimble gave up ownership of the patent, transferring it to Marvel in exchange for compensation. That compensation included a contract right to a perpetual royalty on anything they manufactured using the technology listed in that patent. Whether the patent remained in force or not is not particularly consequential as Kimble now has no ownership in the patent at all, but, instead, holds a contract in which Marvel promises to give him a cut of sales. The economic outcomes might be similar but I see them as two fundamentally different things.
On the other hand, the founders, particularly as it pertains to things like copyrights and patents, placed a high enough value on public domain entry they thought it was worth mentioning in the constitution itself along with the right to bear arms, the right to control the currency, and the mechanism of calling a constitutional convention. Congress can fix this. Congress can clarify this. Let them do it.
The one thing of which I am certain has to do with the financial side of it: If you hold a patent, and want to negotiate a royalty contract, account for an end termination date in your valuation. The cash flows cannot be valued as a perpetuity. This means you’re going to have to substantially increase the upfront payment component, or the percentage royalty rate itself, which very well might kills deals you otherwise could have made. The court just reiterated that a major negotiation tool remains out of your toolbox, even if both parties agree to it in a free market transaction.
The more I think about it, though, the more I’m convinced you could setup a new LLC through which the activity itself was conducted, with non-dilutable equity interests given to both parties, then have a minimum purchase quota and exclusive right to manufacturer certain products somehow signed between the acquirer and the patent owner that achieved the same economic ends but would stand up to the decision; a sort of technical loophole akin to how I’m convinced you could get past the FAFSA rules for extended family members using silent trust funds. I need spend time working through it because I feel like the answer is right there, just out reach, slightly lit in the dark.
I encourage you to read the decision yourself [PDF] to come up with your own opinion about what should be done given the facts. This is a tricky, tricky thing. The whole issue leaves me feeling dissatisfied because it’s not a matter of right and wrong, it’s a matter of weighing priorities and benefits for different parties.
Reader Comments (29)
Comments are presented chronologically, with replies indented beneath the comments to which they respond.
Ang
June 26, 2015
Since you've been on a SCOTUS binge lately, any thoughts on Obergefell v Hodges or King v Burwell that you'd be willing to share publicly?
Joshua Kennon
June 26, 2015
Replying to Ang
I'm completely overwhelmed by Obergefell v Hodges. I am going to have to sit down and try, at some point, to put my feelings into words because there's so much going on in my head and heart given how profoundly it affects our lives.
Ang
June 26, 2015
Replying to Joshua Kennon
Understand completely - especially given how much it personally affects you
Been discussing with my social group all morning - and the general consensus with those who follow law processes and proceedings is: while we all agree that this should have been the way it is from the very beginning, the process to get there hits us the wrong way. It's sad that our legislature is so bogged down that needed change has to come through the courts (Brown v Board too) rather than through the will of the people.
Our friends that don't follow the law are all celebrating. Congrats again to you and your family for finally having these unfair shackles thrown off
Gilvus
June 26, 2015
Replying to Ang
I see it from the other direction: I'm glad we have a judicial system to effect these changes peacefully, rather than through A) violent revolution, or B) the ascension of a wise, forward-thinking, benevolent dictator. That's generally the way titanic shifts have occurred traditionally.
Joshua Kennon
June 26, 2015
Replying to Gilvus
I wonder if it's life experience that causes us to feel differently about it; to be on the receiving end of targeted political persecution that changes perspective and makes us glad we live in a Republic rather than a Democracy.
After all, it was only 1948 when the California Supreme Court became the first in the nation to strike down a marriage ban, ruling in a 4-3 split decision that restrictions targeting Asian men, among other groups, were unconstitutional, overturning precedents that stretched back centuries in a decision called Perez v. Sharp; a decision that was equally criticized by people that would never have to live with their consequences or know what it's like to have basic constitutional freedoms curtailed.
It's crazy to contemplate but Perez was not ancient history ... the decision giving you the right to marry whomever you want in this country was handed down when Warren Buffett was a college student. Let that sink in for a moment. Both of my grandmothers were young girls at the time.
The dissent in Perez reads nearly identically to the dissent in this case. Justice Shenk, a respected conservative thinker, began his opening critique of the majority opinion by saying:
The objections of Roberts, Scalia, Thomas, and Alito in the Obergefell case contain few substantive differences from the Shenk dissent in Perez. "It's always been this way," "Sure, it might be wrong but we should talk it out," "I'm not a bigot", "Just sit down and keep taking it while the rest of us debate your fundamental, basic human rights for another few decades"; all asserted without any sense of self-awareness under some vision of restrained government that is really nothing more than a thin veneer of mob rule bearing little relationship to the Republic which we were gifted; to have us devolve into a type of democracy of which many of the founders were outright contemptuous, putting the judiciary in as a safety valve for precisely that reason. They wouldn't have a court, they'd have a group of librarians.
Would I have preferred nationwide equality to come about by legislative or direct voter action, like it did in Illinois, New York, Maine, etc.? Yes. But like every other civil rights movements in American history, it took a multi-prong approach. Just as Brown v. Board of Education and Loving v. Virginia were accompanied by a flurry of legislation and local ordinances, so, too, was Obergefell. What are people supposed to do in the meantime? Just sit down and take it? For heaven's sake, Mississippi didn't officially abolish slavery until February 7, 2013 and the Southern Baptist Convention only renounced its former reason for forming - to support the right to own slaves - in 1995! Yet, justices like Shenk, Roberts, et. al. act like it's some sort of abstract theoretical discussion rather than real lives being harmed with each passing day by laws that failed, even once, in dozens of court cases with the best experts the entire country could offer with nearly unlimited budgets, to demonstrate a single rational objection other than "our ancestors did this".
Gilvus
June 26, 2015
Replying to Joshua Kennon
From Peter's Laws (The Creed of the Sociopathic Obsessive-Compulsive)
15. Bureaucracy is a challenge to be conquered with a righteous attitude, a tolerance for stupidity, and a bulldozer when necessary.
That bulldozer can do a lot of good (like when Cincinnatus took the role of dictator for a fortnight and retired afterward) or a lot of evil (like despots declaring perpetual states of emergency). My gut feeling is that the bulldozer used today falls in the former category, but only time will tell.
innerscorecard
June 26, 2015
Replying to Joshua Kennon
Looking forward to your full post on this. The meanings of cases are totally different for people who have actually experienced something that either rend (Plessy v. Ferguson, Kerry v. Din) or heal (Brown v. Board of Education, Loving v. Virginia, Obergefell v. Hodges).
Matt
June 26, 2015
Replying to Joshua Kennon
At first I was somewhat surprised that Kennedy relied so heavily on the more fuzzy dignity language. The argument read way less compellingly than I thought it could have been. His argument tends to focus on the importance of marriage as a fundamental human right, and concludes that same-sex couples cannot be denied this right. All this is well and good, but I was curious as to why he didn't just use the argument that restricting marriage to a man and a woman is unconstitutional because you are denying marriage to gays an lesbians based on the fact that the person they want to marry has the "wrong" gender, and gender-discrimination is unconstitutional. But looking at it again, the emphasis on the rights of "same-sex couples" could very well be a setup for designating sexual orientation as a protected class in the future. Sure, legal equality in the eyes of the government might have been won, but there is still the potential issue of discrimination between private parties. Public accommodation laws could cover this for the most part, but perhaps there is something further here...
Joshua Kennon
June 27, 2015
Replying to Matt
I think your hunch is spot-on because the majority went so far beyond what it had to, it provided the proverbial silver bullet for almost all future challenges. The government is required to provide marriage equality to same-sex couples on "the same terms and conditions as opposite-sex couples" under both a Due Process and Equal Protection Clause reading of the 14th amendment. It gets into all sorts of other, related topics including talking about the right to adopt; to raise children. Multiple times, it identifies gay people a having immutable characteristics. It handed the appeals courts the exact language it needed to make heightened scrutiny a foregone conclusion.
So-called "religious freedom" laws, which are really just Jim Crow in drag, are basically nuked now. Sure they might survive for a few years as the challenges unwind, but there is no winning for the anti-gay side. Take the law Michigan passed within recent weeks, allowing Catholic adoption agencies to use taxpayer money while still refusing to work with married couples who are gay. There is no way that stands up in court because it is now seen as the legal equivalent of an agency that would only place children in white homes because it considered black, Asian, or Hispanic families immoral. They'll have to either stop discriminating or go out of business.
The minority dissents spell out several other now-inevitabilities, which are absolutely going to come to pass even if Congress or other states try to pass laws preventing it because marriage is a fundamental right. For example, an accredited religious college accepting Federal student loan money or taxpayer support won't be able to deny enrollment or married housing to a lawfully married gay couple for the same reason Bob Jones University lost its tax exempt status when it refused to allow interracial couples in its student body due to deeply held religious conviction. (Coupled with Christian Legal Society v. Martinez it's not hard to see there is now no serious legal defense against taking Caesar's money while engaging in discrimination.) When you look at demographic trends, it might take 10 years for the political will to be there to do it, but it's going to happen. And a lot sooner than it otherwise would have.
Laws that allow businesses to exclude citizens from exercising their fundamental right - such as those permitting charities or landlords from refusing to rent out their building to the general public - have no chance at survival now, either. A Church or pastor, for example, will never be forced to conduct any marriage ceremony due to the 1st Amendment but the real estate business of generating rental income from property? That's fair game, just like with race. Personally, I think the mathematical probabilities of it being a major problem are not particularly high given that there are - what - 600,000 or so married gay couples in the United States? Of those, you've heard of half a dozen or a dozen, at most, public accommodation conflicts. You'll have a few high-profile martyrs but the actual economic consequences won't be meaningful. It's a tiny proportion relative to things like restaurants refusing service to non-whites several decades ago. If we got through that as a country, this is nothing.
By making the ruling about dignity, fundamental rights, immutable characteristics, children, and equality, the majority went full Death Star on the opposition. Game over. Marriage equality alone would have been a major win. This was so much more. It effectively guaranteed that by the time it all plays out, the government will have no power to treat Aaron or me differently than our straight family members; that any restrictions based on our sexual orientation or marital status will be blown out of the water with those advocating such positions, as Alito put it in his dissent, seen as bigots treated as such by schools, government, and employers.
Matt
June 27, 2015
Replying to Joshua Kennon
Yeah I think I was being a little paranoid on my first reading of the majority opinion thinking that the arguments on dignity, fundamental rights, and children were less technically solid and that setting up sexual orientation as a protected class would be a much bigger (and potentially a politically shakier) leap than using gender discrimination as a justification for today's decision.
On second reading I can see how it would be hard to overturn this case though. There really isn't anything Roberts in his dissent that is a new objection to same-sex marriage, and those as we've already discussed here don't hold up very well to rational scrutiny. Even claims of judicial overreach seem to merely reflect a different view of where the burden of proof lies. Roberts assumes the status quo unless challengers prove otherwise (through the legislature), while Kennedy is more generous in giving consideration to the idea that maybe tradition was wrong all along, and that we just haven't seen it until now -- in which case the court isn't inventing new rights; it is merely defending the right of a certain class to participate in an existing right on the basis that we now have a better understanding of the social issues involved. Although I was pretty sure that using gender discrimination as an argument would be a fairly simple win, I think you're right and that the majority wanted this to be a more comprehensive decision.
Its interesting that the dissent doesn't seem to see the endgame here. They speak as if religious groups will now be an oppressed minority as if it will continue to be a defensible position. If they are thinking at all about their legacies, they certainly wouldn't want to be on the record with comments that will almost certainly appear ridiculous and bigoted a generation or two from now.
Adam
June 30, 2015
Replying to Joshua Kennon
As usual I'm amazed at the level of depth and knowledge of the commenters here. I consider myself well informed, but definitely don't have the time to delve in to the case law and decisions like many of the people here. I appreciate the additional background provided.
All I can say is I'm happy with the outcome.
Scott McCarthy
June 26, 2015
Replying to Joshua Kennon
Every time I read a majority opinion written by Justice Kennedy in a 5-4 case, I always pause for a moment to consider that his seat very nearly belonged to Robert Bork.
Joshua Kennon
June 26, 2015
Replying to Scott McCarthy
This flashed through my mind while I was going through the majority opinion. It gave me the sensation, for half a second, of having just dodged a car that veered off the road.
I cannot imagine how different the country would be had he been appointed to the bench. What scares me about it is not so much the anti-gay bias the man had (and that is a guy who could barely hide his contempt), but his vision of nearly unrestrained executive power. Thank God Republican Arlen Specter tore into him during the confirmation hearing, demanding to know why it was okay for executive power to "evolve", in Bork's words, but not individual liberty. I think that's a fantastic question. When I wake up in the morning, the last thing I think is, "Oh, gee, the Executive Branch of the United States Federal Government should be given more power." I'd be content if we could run the place with a mailbox, a firehouse, and leave everyone largely to their own devices even though that's not realistic these days.
It's been a few years since I last wrote about Bork but nothing has changed my opinion that he really had to be one of the most intellectually dishonest men I've ever studied. He's almost like an anti-Scalia. (As much as I vehemently disagree with some of Scalia's opinions, with few exceptions, he's largely consistent and upfront about his motivations, worldview, logical constructs, and beliefs, communicating those to the audience by sheer force of intellect, not deception. I have a deep respect that. Scalia tries to win you over, depending on the situation, with either intellectual seduction or intellectual warfare, frequently couched in soaring, epistle-like evocations of 18th century America that make you want to grab a musket or throw tea into a harbor (though, I do think that has slipped as he's aged). Bork, in contrast, would use data like smoke and mirrors, twisting, manipulating, and slithering his way into whatever conclusion he wanted to reach, hoping his audience was too stupid to see whatever sleight-of-hand he'd used.)
Scott McCarthy
June 26, 2015
Replying to Joshua Kennon
Are you familiar at all with Douglas Ginsburg? I don't know enough about him to know whether he would have been to the right of Kennedy, and if so, how far.
But as for butterfly effects, the difference between same-sex marriage being legal or not may well have been determined by a drug dealer in Cambridge.
Joshua Kennon
June 26, 2015
Replying to Scott McCarthy
I know next to nothing about him. I only vaguely remember reading something about smoking pot costing the nomination back when I was researching Bork but I never looked into his rulings, judicial philosophy, or anything.
The butterfly effect is wild, isn't it? Not to get all Carl Sagan on you, but sometimes, if I'm outside at night looking up at the sky, it blows my mind to think of the series of events that had to occur, the impossible probabilities that needed to take place in perfect sequential order, for me to be here, on this rock, in this corner of space, at this moment in time, observing it; that the physical matter making up "me" is billions of years old, forged in exploding stars. We are stars observing themselves. It's just ... I don't think there's a word that captures the way it makes me feel. It's weird. Funny. Ridiculous. Awe-inspiring. Overwhelming. Then again, the thought that keeps going through my mind the past week has been about the size of the universe (we saw Interstellar) and how, right now, it's all happening. All of it. Simultaneously. Everywhere. It makes me break out into laughter because it's so far beyond the hardware's ability to comprehend it's fun just trying.
A
June 26, 2015
Replying to Joshua Kennon
Very happy for Aaron and you! Thought about you guys while reading about the ruling at work.
Joshua Kennon
June 26, 2015
Replying to A
Thank you! Sincerely =)
FratMan
June 26, 2015
Replying to Ang
I am happy for my three gay friends that can marry as of today. This is the end of government overreach for so many people. It's the end of telling a gay person they can't be at the deathbed of someone they love because of the moral convictions of the healthcare provider. It's the end of unfair treatment of their estate when they die. It's the end of discriminatory housing practices against gay couples. It's the end of telling people in the service that they can fight for their country but can't insure their loved one or provide for their housing. It's the end of government peering into your bedroom and telling you how you can arrange your household. Today is a win for personal freedom, and a win for the autonomy of the individual. For all of these things, my happiness is unqualified.
I can also say, without qualification, that this is precisely the sort of judicial overreach and judicial activism that is destroying the separation of powers in America. Today the Supreme Court largely got it right by demanding that states recognize validly entered contracts (which marriages, legally speaking, are) created in other states. That said, creating a right not contemplated in the Constitution, whole-cloth, is an usurpation of the legislature and of the democratic process. If the democratic process offends you, then we find ourselves in agreement. Democracy is full of offensive ideas and horrible people. But the legislative process is the proper vehicle by which to change or enlarge the law. Today, by judicial decree from our Wise Masters, we witnessed a judicial usurpation of the constitutional separation of powers and erosion of our ever-illusory federalist system - a system intended to reserve a great deal of power in the states. "Substantive Due Process" rights are legal fictions. In many cases we can agree that they have improved our society. But contemplate, if you will, what happens in a democracy when a court can sweep away any law in the 50 states on a political whim. This particular outcome was more expedient than waiting to achieve the desired effect through further political process. But it comes at the cost of eroding our political system even further, and rendering the separation of powers nearly unrecognizable.
I'll leave you with Chief Justice Roberts, who puts it so much better than I could - "If you are among the many Americans—of whatever sexual orientation—who favor expanding same-sex marriage, by all means celebrate today’s decision. Celebrate the achievement of a desired goal. Celebrate the opportunity for a new expression of commitment to a partner. Celebrate the availability of new benefits. But do not celebrate the Constitution. It had nothing to do with it."
Ang
June 26, 2015
Replying to FratMan
I agree with you Tim, all of my lawyer friends are echoing your exact sentiments. The court shouldn't be legislating from the bench, but consider Brown v. Board. If the courts did not step in, it could have taken decades for the legislature to push through the needed changes. Do you think there are subject matters where the "fix" should be "sped up" for social policy reasons? Consider the majority of the "for" populace celebrating today's victory, they either don't understand or don't care why the process through which this has been achieved is bad for the future, to them, the end justifies the means.
FratMan
June 26, 2015
Replying to Ang
The answer to that question depends entirely on whether you care more about the satisfaction of your own self interest or the interest of the system you leave behind.
A while back, Joshua engaged with a commenter on student loan reform. There were some short-term sacrifices that would make the system better long-term in Joshua's prescription. Someone responded, "Yeah, but that won't benefit me. Who cares if people five years from now have it better?"
Joshua said that rationale explains why American civilization can be screwed long term. There's an old saying that people don't care about due process until they personally are accused of something. The application here is that people ignore the process when it achieves something they desire. Very few people in favor of gay marriage (celebrating this decision) seem to analyze how the legal principles established today can be used against them in the future.
Very recently, the Democrats changed the filibuster rules in the Senate. It was an inconvenient roadblock that prevented them from enacting their agenda when they had a majority but less than 60. Well, guess what, the Republicans are back. I bet some of those Democrats that diminished the role of the filibuster would like to undo that (although having Obama's veto power may temper their regret.)
The difficult question you posed is this: What's the role of patience when you're being screwed over? If the Court showed more restraint today, I have little doubt this end game would have been achieved by 2020 based on population trends and demographics because people get conservative as they age, but they don't tend to become "anti-gay rights" as they age.
The Brown court's logic was not sound jurisprudential logic either, but there may have been more necessity on that issue. The success of the Civil Rights Movement was very event-driven by JFK's death that gave LBJ all of this raw power to enact legislation in Kennedy's name. And plus, LBJ was an effective arm-twister before he had such raw political capital/power in the aftermath of the assassination.
It's not crazy to imagine an alternate history where Goldwater beats Kennedy in 1964 and civil rights legislation doesn't get the development it deserved.
Brown was a 1954 case. I don't think that court had the clarity that civil rights would develop on its own in the United States to where it needed to be in the same way that we have certainty now that gay equality will be achieved. Because of my Catholic and conservative background, I'm probably one of the few people in my 20s that has a Facebook news feed equally dedicated to pro-gay and anti-gay marriage commentary from my friend group. On the rare occasion a conservative anti-gay marriage friend asks me for advice on how to go about political activism, I say: Don't. You won't gain anything, and you will become socially ostracized. William F. Buckley said a conservative should vote for the most conservative candidate that has a shot of winning. Borrowing that principle for this context, I say advocate things in the Catechism that have a chance in hell of being persuasive. Joshua was correct that being anti-gay marriage in corporate America is a career killer. We didn't have that certainty at the time of the Brown ruling, arguably making their overreach less egregious because there was less certainty black rights would be achieved in the medium-term future.
It is very easy for me to advocate patience when it is not my rights on the line. Heck, I got mad as hell at the trustees involving the Neighborhood Covenant rules when they towed my car for being in the same spot for over 60 days even though it was in my driveway. I thought, "Who the hell are you to tell me that I can't park my car in my own driveway for as long as I see fit?" I didn't really care about process at that point--I just wanted to use my property as I wanted. That issue is small potatoes, and it got me inflamed. Imagine something that your entire world wraps around being denied to you. That's where things get tricky--on an individualized basis, the damage to gays seeking marriage is substantial.
Today, we find ourselves in this unusual place where America's marriage freedoms grew stronger but the separation of powers grew weaker. Waiting for fifty states to change is a slow process. Watching the federal government (through the judiciary) sweep away a law or a negative right is always a rather quick process. A victory today could be a stunning loss tomorrow. Unfortunately, people who are against states' rights (because they automatically associate it with racism) forget that states' rights have also allowed gays to marry in certain states before it was nationally accepted and subsequently prescribed by the Supreme Court.
Gilvus
June 26, 2015
Replying to FratMan
Tim (and anyone else who wants to jump in), what do you think about the states-rights argument being applied to slavery during the 1800s? Wasn't the federalist system, in large part, responsible for the survival of the slave trade until the 13th Amendment was finally ratified?
FratMan
June 26, 2015
Replying to Gilvus
Intolerable as we find the fact that we waited for the democratically elected government to change the Constitution--what is the difference between waiting for the democratically elected representatives to change it or waiting for the judiciary to change it? Either way, the delay is a denial of justice. Either delay is abhorrent by our standards of right and wrong.
WIth the 13th Amendment, the authority came from the fact that the procedure was a constitutionally sound process of changing laws through amendments. It wasn't nine people who decided. It wasn't nine people who created a law for a populace that did not elect them. The federalist system delays justice when inherent liberties are denied (slavery, the female vote, gay marriage) from the beginning. But no amount of wrangling makes the judiciary the proper party to create law by decree.
Substantive due process is a legal fiction. The amendment and legislative process is not.
Plus, haven't we lost sight of what it means to have a neutral judiciary? If I can almost always guess the vote of a particular justice based on the political content of a law rather than a constitutional-based reading of the law itself, isn't that a blow to the notion of a neutral judiciary? The only person I can't reliably predict on controversial cases is Roberts.
Justice White said in 1985, "We must always bear in mind that the substantive content of the Due Process Clause is suggested neither by its language nor by pre-constitutional history. That content is nothing more than the accumulated product of judicial interpretation of the Fifth and Fourteenth Amendments."
The substantive due process line of cases is nothing more than a vehicle through which modern justices allow themselves to inject popular political opinion into modern judicial opinions.
To address your slavery example:
The judiciary was not designed to expand upon the law as opinions on those rights changed. It was designed to be a neutral interpreter of the law. The law isn't supposed to change when you toss grass into the air to measure the winds of the latest public opinion polls. It's designed to allow people to conform their behavior to it, or prepare for the range of consequences that follow.
You can't conform your behavior to laws that change to mirror the latest public sentiment. You should use the legislative process to change the law. That's slow, and for many, especially those affected by a denial of justice, unpopular. But that slowness also gives us certainty to act based on laws that we consider protective of our rights. We are supposed to change the law through legislative actions and Constitutional amendments so we have notice and can attempt to influence those changes.
Arguing that the Supreme Court can update the law to our current sensibilities is stating that the law is entirely malleable and prone to sudden shifts in response to the latest public turmoil or sentiment shift, and five people can determine that.
Yes, you can be comfortable with this arrangement when it works out in your favor, but it's less comforting when you see it for what it is: An expansion of judicial power and yet another violation of judicial neutrality.
Ultimately, when decisions like this are made, we are effectively saying, "I trust nine people more than I trust any democratically elected member of Congress, the President, or any of the 50 component state governments." Trusting the judiciary is great when it works out in your favor because it's fast. It's not so great when you live in a state that permits gay marriage, you get married, and then Judge Bork writes the 5-4 decision stripping you of your marriage based on the fact that the right never should have existed in the first place. The self-interest of an outcome seems to affect how people feel about states' rights. I prefer the states' rights approach because states can act as incubators for policy evolution, and if you don't like it, you can move to 49 other incubators that are more in tune with your conception of government.
But claiming that the judiciary has the authority to do this relies on a reading of the 14th Amendment that stretches the logical boundaries of the mind. You can be intellectually honest when you say: Gay rights should have always existed. They don't under current law. Change the law to reflect what should have always existed. In the 1950s, the judiciary turbo-charged this alternative approach of saying, "We'll use the 14th amendment to write whatever we want into the Constitution because we don't want to wait anymore and this is faster."
TL;DR: The 14th Amendment's history demonstrates the Court's successful efforts to enforce an authority it should not possess. The people should regard it as an illegitimate use of power, but our country has developed wild deference to the courts regarding the interpretation of the Constitution. I admired Lincoln's response to judicial constitutional overreach: Just pass the same law over again that the Court just rejected.
I am very happy with the outcome of this decision. The fact that it took this long is a great case study in appeals to tradition and difficulties changing the status quo. But I wanted this outcome through non-judicial means. Don't you wonder when the overreach of the 14th Amendment's purported authority, as well as the decades-long abandonment of the plain meaning rule, is going to suddenly take away something you cherish?
Joshua Kennon
June 26, 2015
Replying to FratMan
I understand those points, and even agree with some of them in theory, but stepping back from the current case and looking at the judicial philosophy in general, here is the problem I run into; a problem I can't get over even if I were in no way benefiting from the current ruling and that I've written about for years:
The judiciary shouldn't be neutral in the sense that many people use that word because it is a co-equal, not inferior, branch of government that for nearly the entire history of the nation has served as a check on the tendency of rulers and the mob to give into human nature once in power; to overreach into the lives of private citizens. I'd argue that one of the primary purposes of constitutional review is to stand between the citizens and the authorities like a body guard or bouncer at a club, smacking down the Executive or Legislature's hand whenever it reaches beyond the velvet rope of constitutional authority that was envisioned, erring on the side of individual freedoms whenever in doubt.
Case after case, generation after generation, this has worked marvelously for a very long time and made it possible for the constitution to survive for (now going on) three centuries, making it the most successful governing document in the history of human civilization with only a single civil war; completely without peer or parallel, drawn from the best of its ancestor, the Magna Carta, from which it drew its philosophical roots. Under this framework, basic principles, such as freedom from illegal search and seizure can be applied to technological innovation in the way we communicate (email vs. paper) without devolving into the mess that plagues the modern State of California, constantly amending the constitution to the point we become non-governable.
For example, regardless of original intent, the 14th amendment clearly states that all laws have to be applied equally to all people, which the courts have ruled means "similarly situated". For the government to impose a policy that conflicts with this, it has to demonstrate a damn good reason, based on evidence and fact, for its behavior. Imagine Tumblr's community formed a PAC. It managed to get an army of Social Justice Warriors elected to Congress. Their first order of business is passing a special 3% "privilege" tax on straight, white men - a tax that is perfectly permissible under the 16th amendment. Would the court be wrong to strike it down under 14th amendment equal protection? To say that the mob, through the legislature, cannot target someone under such a mechanism unfairly? I don't think it would be because the government can't do that. It is an illegitimate exercise of legislative power.
Say the court overturns it. What if they are wrong? The constitution provides for that, too! There are multiple remedies and the ultimate power always rests with the people in the final analysis.
1. They can impeach individual judges.
2. They can add judges to the court to change the balance of power.
3. They can pass laws restricting the ability of the court system to hear certain constitutional challenges.
4. They can amend the constitution itself.
5. They can call a constitutional amendment to completely re-write the rules
If the people really, truly, honest-to-God want to, say, restrict white women from marrying anyone other than white men who were over the age of 35 and had a net worth of at least $250,000, under our present system of government they could do it. They could overrule the Supreme Court's Loving v. Virginia decision, or in this case, the marriage equality decision, by amending the constitution itself. The people, collectively, still have that power. The court's ruling did not strip them of that power because it is beyond the ability of present system for that to happen; an impossibility. Knowing this, the founders purposely made the highest level of exercising that power damn near impossible to achieve so you had to have what amounted to super-majority agreement on it, which is the primary reason the constitution is only amended a handful of times each century. Therein resides the secret to its success; the ability, through the courts, to deal with modern times without triggering a civil war, while remaining stable enough that major changes can happen.
The courts, then, aren't being used as a substitute for the judgment of democracy as you suggest but rather, act as a safety valve to protect minorities who are on the wrong end of the political winds at any given time. Throughout history, that list has included women, Jews, blacks, Catholics, Asians, gays, Quakers, and a litany of others. When, through the government, individual freedoms are restricted beyond what is permissible, the court pushes the baseball bat into the government's chest and says, "Back off".
The people, through the government, can always pull rank and break the bat or fire the bouncer. If this case were a judicial mistake in judgment, and the role of the court really should be nothing more than librarians comparing dead text without any sense of purpose, intent, or framework of basic fairness, the very thing you are worried it overrode - the people acting through democratic means either directly or via legislature - can come back tomorrow and say, "No." They can pull rank. They - we - have the power. Just because it makes it harder, which was the entire intent of our system, doesn't undermine that reality. A competent judiciary acting within the full power of its constitutional authority does not the constitution break.
Personally, I feel fairly strongly about it because I do not trust governmental power. Generally, anything that weakens it makes me happy. Having a safety valve that knocks down laws in favor of individual freedoms does not strike me as a great tragedy because if the court is wrong, the people can always undo it using one of the other tools in the toolbox the founders left them with (including the "break in case of emergency" constitutional convention). In the meantime, what happens? You have more individual freedom in most cases, as nearly all modern so-called "overreach" by the court has historically involved stopping the government from doing something.
All this whining on the part of Roberts, et. al. about democracy being upended is nonsense. It's a democratic republic in action, working exactly as it should. Tomorrow, if the people wanted it, they could pass a constitutional amendment overriding the Obergefell decision. That's the American system. That's what makes it beautiful.
In a broader sense, my biggest intellectual problem with the "neutral" assumption in the judiciary is that if Obergefell were incorrectly decided, then there is absolutely no justification for Loving; for Griswold; for Brown v. Board of Education; for California's Supreme Court to hand down its Perez decision. We can't have it both ways. Either the court serves as an equal, not inferior, branch with a task of safeguarding the republic from irrational, even if traditional, beliefs or it is a group of paper pushers letting those in power get away with whatever they want, whenever they want. I think an America with a judiciary that looked like that would be one step closer to tyranny. It is not a notion I relish.
Perhaps this is cynicism of reading too much history but I want a strong third branch. I like to see as much fighting and strife between the powers as possible so these things are worked out peacefully rather than on a battlefield. I don't even like it when the same political party controls both the White House and Congress! (In fact, my idea of political heaven would be Congress meeting for only 2 weeks every-other-year, forcing them to focus on the things that matter, letting the rest sort itself out.)
TL;DR: If the court overreaches, you use one of the litany of countermeasures the founders left to address the situation. The people are always the ultimate power in the American system of government, which is not diminished by having the court serve as a safe valve for individual liberties, even if it does err on the side of personal freedoms too much from time to time.
FratMan
July 2, 2015
Replying to Joshua Kennon
Joshua, I would like to offer you an unqualified apology for my posting here.
Even though my argument does reflect my actual concerns about the process behind this decision, this was neither the appropriate time nor place. I chose here to vent my concerns because your audience has the type of sophistication to appreciate the difference between procedural objections and outcome objections, but I should have refrained from sharing any negativity on a day that is so clearly beneficial to you and has been a long time coming.
I got the time and place wrong, and I am sorry.
-Tim
Matt
June 26, 2015
Replying to FratMan
As Joshua explains in his excellent response, there are still actions that the people can take in the event that the cases were decided incorrectly. However, taking too much of a literal/originalist view on the law makes for quite a gimped judiciary. The view that the judiciary and the law is impartial or neutral is a fiction. Even a few of my friends who went to law school and fall on the conservative side admit that "judicial activism" isn't as clear cut as some make it out to be. Constitutional law cases always involve some sort of subjective judgment. Even if you choose not to choose, that is a choice. There really is no "neutral" here. No matter what choice you make, you are still in some sense writing the law. The handcuff that keeps judges from going off the deep end though, is precedent. The Court generally has to rely on precedent of previous cases to allow it to make a reasoned argument. So even if the court can steer the law by making decisions such as the one in Obergefell, they still can't just come out and make random laws out of the blue with no precedent to support it. Separation of powers, while nice in theory, is a lot fuzzier in practice.
The argument that the judiciary shouldn't have the ability to exercise judicial review on the constitutionality of laws also gives alarming power to the legislature, or leads to a fragile constitution that must explicitly mention all the edge cases. If your constitution needs to be that precise in order to have any effect, then you have essentially made it useless, since it can't flexibly respond to the changing society. The constitution should be a flexible guiding template of governance and not an enumeration of each specific right granted to the citizens. Changing it to be otherwise makes it simply a reflection of the legal code. And in the event that you don't have the power of judicial review, there is nothing that prevents mob rule short of a constitutional amendment. (And good luck passing a constitutional amendment to protect the unfavored minority if you have to get the approval of the majority to do it!) Removing the Court's power of judicial review gives too much power to the legislature and in effect, the majority.
As Joshua states, historically the judiciary is the branch that has generally weakened the power of the government, expanded individuals' rights, and upheld the rights of minorities, not the other way around. Prevention of mob rule is critical, in my opinion. If there is nobody to stop the legislature and stand up for the rights of minorities, you can get failed states and breakups of countries simply because of the creation of a permanent group of 2nd class citizens (which in a large part explains some of the secession movements you see in a handful of regions around the world).
I think this quote from Kennedy in the majority opinion rounds it up succinctly:
The point is that this is a constitutional republic, not a democracy. We shouldn't be able to vote to prevent black children from going to school with white children, or to prevent women from voting. And while it certainly would be preferable if these things (and the marriage issue) should be legalized by a vote, I don't think a vote should be required to make them legal. Forcing everything to go through the legislative process effectively means that you MUST be in the majority receive your rights, which is a long time if you must wait for the older people with their entrenched opinions to die off. Not everyone is compelled by reason, even if that may be the case on this site. In the real world, change can come more from people dying than from impassioned debate.
Again though, Joshua's response is quite solid. A+ there.
Joshua Kennon
July 2, 2015
Replying to Ang
I am splitting my response into two parts - 1.) The personal, 2.) The intellectual.
The personal post was published a few minutes ago. You can read it here.
joe pierson
June 26, 2015
How about Kimble introduces the product to Marvel by having them sign a proprietary information and inventions agreements, Marvel writes a royalty contract with Kimble, then Marvel can write the patent before it's product goes public to protect the IP, this way Kimble is decoupled from patent law.
fran
July 1, 2015
Obergefell: What a great Supreme Court decision to further human rights in this country. However, with several comments about the importance of individual's (person's) rights, I can't help but think that Citizen's United will haunt us in more ways than I initially was aware of, since corporations are persons in the eye of the Supreme Court. Should corporations have the right to adopt? Perhaps this is why the justices focused on the language of "same-sex couples" and not individuals rights.
innerscorecard
July 2, 2015
Wow, you really called the implosion of reddit. Implosions happen slowly and then very quickly, it seems:
https://www.reddit.com/r/IdeasForAskreddit/comments/3bxj7n/megathread_subreddit_shutdown/