The case involves the Constitution’s
Appointments Clause which lays out how
government officials can be appointed. As the
size of government has increased, a growing
conservative legal movement has objected to
unelected officials wielding vast amounts of
power. Appointments Clause challenges have
been one way to check that power.
The court’s conservative justices suggested that
the administrative patent judges’ appointment
is problematic. Justice Brett Kavanaugh said
during arguments that the decisions the judges
make are “multi-million, sometimes billion-
dollar, decisions being made not by someone
who’s accountable in the usual way” required by
the Constitution’s Appointments Clause.
And Justice Samuel Alito at one point suggested
where the court seems to be headed by saying
“let’s assume that we agree...that this current
scheme violates the Appointments Clause.”
The justices were hearing arguments by phone
because of the coronavirus pandemic.
The Supreme Court has recently agreed to hear a
string of separation of powers cases involving the
appointment and removal of various officials. This
term, the court has three cases that touch on the
issue. But last term, even when the court found a
separation of powers issue, it avoided making a
decision with any dramatic consequences.
In the current case, the justices are being asked
to decide whether administrative patent judges
exercise significant authority so that they
are so-called principal officers of the United
States rather than inferior officers. Principal
officers must be appointed by the president
and confirmed by the Senate while inferior