Who’ll write the Bilski opinion?

There’s no hard info about who will write the Bilski opinion, but we can look at trends and signs.

We don’t know who voted to hear ("grant certiorari for") Bilski, but at least four of the nine judges have to vote to hear the case, and the court subsequently lost one judge, so all we know is that the current batch includes at least three judges that are interested in this case. Sotomayor joined the court after the decision to hear this case was taken. This might mean she’s unlikely to write the opinion since there are at least three more senior judges who are interested.

Who would we want?

This is really hard to answer. The US Supreme Court hasn’t touched the question of patentable subject matter since the 1981 Diehr case, and their opinions could change over time.

Software developers usually don’t have analyses of court judges, but we can look at what the patent lawyers are praying for, and know that the opposite is what’s good for us. Patent lawyers would like Sotomayor to write the opinion. She has personal links to patent lawyers and might support the idea of patenting everything under the sun. The judge the patent lawyers are afraid of, is Stevens. So maybe he’s are man.

Who was vocal at the hearing?

This is just a straight count of how many statements each judge made during the November Bilski hearing. A long intelligent comment counts as one statement, and a quickfire back and fourth with little substance could count as four. So there’s nothing precise, but there’s a very high probability that Sotomayor and Roberts are more interested in this particular case than Alito and Thomas are:

  • Sotomayor: 26
  • Roberts: 17
  • Scalia: 15
  • Breyer: 14
  • Stevens: 14
  • Kennedy: 12
  • Ginsburg: 8
  • Alito: 1
  • Thomas: 0

Who’s not busy on other opinions?

Professor Joseph Scott Miller suggests that the cases are usually evenly distributed. Using Miller’s method, looking at the three hearings October, November, and December, with the numbers as of April 30th, we see:

  • (no decision yet): 9
  • Alito: 4
  • Breyer: 4
  • Ginsburg: 4
  • Scalia: 3
  • Roberts: 3
  • Sotomayor: 3
  • Thomas: 3
  • Stevens: 2
  • Kennedy : 1

Thirty-six cases is four cases per judge. That makes Alito, Breyer, and Ginsburg unlikely to be also writing Bilski. Of the judges who’ve already written three opinions, Thomas is unlikely to write Bilski since he said nothing at the hearing. Scalia, Roberts, and Sotomayor each showed interest at the hearing.

Five of the remaining nine decisions will be written by Stevens and Kennedy, and they both showed interest during the hearing. With that in mind, I looked at their records and made these pages:

Each has his good points, but we’ve only a very fragmented picture.

There you have it. Some speculation for the weekend. Comments on further speculative analysis or on the judges’ past statements would be very welcome.

I’ve also written recently on When to expect Bilski (maybe Monday) and Which ways could Bilski go?.

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One Comment

  • Seo Sanghyeon says:

    I don’t think it will be Kennedy. He holds the swing vote and he will probably write opinions for more important and interesting cases than a mere patent case. :)