The Court released the final decisions of the 2016 Term on Monday, June 26th, bringing the total number of opinions issued by the mostly short-handed bench to 69. In contrast, the 2015 term saw the release of 80 merits opinions, indicating the empty seat did have a significant effect on justices as they filled the argument calendar for the term. The specter of a 4-4 split has likely been the motivation behind this term’s patent heavy and relatively “blockbuster” free docket. Empirical SCOTUS noted that in 2016 the Court took seven cases from the Federal Circuit – six patent cases and one trademark case, which is a sharp increase from the previous high of four.
This caution in curating the docket was not misplaced. The political nature of Supreme Court nominations resulted in Scalia’s seat remaining vacant for over a year due to the failure of the Senate to hold the necessary hearings to progress Merrick Garland’s nomination to a confirmation vote. Senate Republicans were ultimately victorious in confirming President Trump’s nominee, Neil Gorsuch, restoring the Court to full strength for the last part of the term. Gorsuch was confirmed in time to take part in the last rounds of oral arguments for the 2016 term but without the nuclear option, it is entirely possible all the merits opinions of this term would have been issued by an 8-justice bench.
The 2016 term still had some major cases even if they fell short of blockbuster status. Trinity Lutheran Church of Columbia, Inc. v. Comer, was a significant ruling on the free exercise clause of the First Amendment stating Missouri could not deny public funds to a church on the basis that it was a religious organization. Matal v. Tam, also was decided on First Amendment grounds, holding that the disparagement clause of the Lanham Act was in violation. Samsung Electronics Co. v. Apple, was a landmark case for patent law, determining that damages for design patent infringement can only be based on the components being infringed upon rather than the end product itself. While none of these cases captured the public’s attention the same way that Whole Women’s Health v. Hellerstedt (Abortion in OT 2015) or Obergefell v. Hodges (Gay Marriage in OT 2014), the rulings are significant it their own right.
However, the Court appears to have regained its confidence with 28 cases already set for oral argument as of June 28th and two highly anticipated grants to close out the term on a high note. The June 26th orders list included a grant for Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, after an impressive 14 relists and a highly unusual per curiam opinion reinstating parts of the ban and a grant consolidating Trump v. International Refugee Assistance Project and Trump v. Hawaii for oral argument. The Court already has at least one patent case on the docket with Oil States Energy Services LLC v. Greene’s Energy Group, LLC’s grant on June 12th but whether 2017 will maintain 2016’s high level of patent grants remains an open question now that the immediate danger of a 4-4 split has passed.