Citation: Tonja Jacobi & Matthew Sag, The Paradox of Intellectual Property at the U.S. Supreme Court, 41 Berkeley Technology Law Journal 135 (2025)
In a nutshell:
In The Paradox of Intellectual Property at the U.S. Supreme Court, Tonja Jacobi and Matthew Sag argue that intellectual property has become the rare area of law where judicial ideology no longer predicts Supreme Court outcomes, even as the Court has become more politically polarized than at any point in its measured history.
Summary
Almost twenty years ago, we showed that Supreme Court IP cases from the 1953 through 2005 Terms were predictable based on judicial ideology: more conservative justices were more likely to vote for the party asserting the IP right, just as they favor owners of real property. This article extends that dataset through the 2022 Term, covering 151 IP cases and 1,395 individual judicial votes, and finds that the effect has disappeared. Using logistic regression with standard measures of ideology, including Martin-Quinn scores and the party of the appointing president, ideology remains a significant predictor of votes in election law and constitutional criminal procedure cases but no longer predicts votes in IP cases. The one exception is IP-antitrust cases, which retain a clear ideological valence.
The Court has not lost interest in IP. The share of the docket devoted to IP more than tripled in the Roberts Court era, from under 2% to 6.23%, exceeding 10% in some terms, even as the Court’s overall docket shrank. Patent cases drive most of the increase. Graphical analysis of “disordered voting” shows that justices on both wings of the Court now depart from ideological expectations at similar rates, with the sharpest change beginning around the 2010 Term, and that IP cases are decided unanimously far more often than the rest of the docket (51% versus 38%).
We test the leading explanations for this shift: an ideological realignment over IP, a separation-of-powers conflict between the Court and Congress, and the theory that the Court now takes mostly “peripheral” or procedural IP cases. None fits the data. The most plausible account is institutional: the Court has been asserting hierarchical control over the Federal Circuit, the court of appeals with exclusive jurisdiction over patent appeals, and cases like eBay v. MercExchange and Google v. Oracle make more sense as discipline of a wayward lower court than as ideological contests. Even that explanation is partial, because copyright and trademark cases have also become unpredictable. Whatever the cause, a politically and economically important area of law has become depoliticized at a moment when the Court is widely seen as ideology all the way down.
Why read this article?
The Paradox of Intellectual Property at the U.S. Supreme Court offers a clear introduction to how empirical scholars study judicial behavior, explaining the attitudinal model, Martin-Quinn scores, and the party-of-appointing-president measure, and why the standard “liberal outcome” coding in the Supreme Court Database breaks down in disputes between two businesses. The article also works through the major IP cases of the Roberts Court era, including FTC v. Actavis, eBay v. MercExchange, Google v. Oracle, and Warhol v. Goldsmith, showing how the actual voting lineups confound the usual ideological story. An appendix lists all 151 Supreme Court IP cases from 1953 to 2022 with the coding needed to replicate or extend the analysis.
Further Reading
Jeffrey A. Segal & Harold J. Spaeth, The Supreme Court and the Attitudinal Model Revisited (Cambridge University Press 2002) – The standard statement of the attitudinal model in political science, presenting the evidence that the justices’ votes are best explained by their ideological attitudes rather than by legal doctrine.
Gregory N. Mandel, Institutional Fracture in Intellectual Property Law: The Supreme Court Versus Congress, 102 Minnesota Law Review 803 (2017) – An empirical study of IP decisions and statutes from 2002 to 2016 finding that Congress consistently strengthened IP rights over that period while the Supreme Court mostly weakened them.
Shyamkrishna Balganesh, The Institutionalist Turn in Supreme Court Copyright Jurisprudence, 2021 Supreme Court Review 417 (2022) – Argues that the Roberts Court’s copyright cases increasingly address procedural and institutional questions about the Court’s own role in the copyright system rather than substantive copyright doctrine.
Paul R. Gugliuzza & Mark A. Lemley, Myths and Reality of Patent Law at the Supreme Court, 104 Boston University Law Review 891 (2024) – Categorizes four decades of Supreme Court patent decisions into core and peripheral issues and examines how often the Court actually disagrees with the Federal Circuit on substantive patent law.