The Pathos of Politics (107-2) Patents Perspective


There are woeful take-away points to this brief exposition on patent law, and adjudication of the law generally. 1st is the power of the judiciary to arbitrarily craft legalities and later capriciously reverse themselves. The history of the US judiciary is one of jurists following their biased beliefs and fabricating support for it. Self-contradictory case law helps, though that hardly matters, as long-standing precedents are broken upon whim.

Judicial corruption only partly owes to the failure of the Congress to legislate with specificity. Courts skirt the spirit of laws without accountability. Rarely has Congress seen fit to overrule the courts via legislative action, and then only when the courts pointed out a glaringly obvious deficiency in a law in which a court ruling went against Congressional wont.

2nd is that the American courts are highly politicized: the higher courts especially, as power concentrates via appeal. US supreme court rulings are often political denouements, as dissents dramatically show. In the past half century, major decisions of seismic societal import have repeatedly been decided 5 to 4 along strictly partisan lines.

Supreme court justices are chosen on their ideology and political allegiance. In 2016, the Republican-controlled senate refused for a year to even consider a conservative nominee to the supreme court by a Democrat president. Once a Republican was in the office of the presidency, a reactionary right-wing justice was quickly confirmed.

This partisan treatment of a SCOTUS justice nominee was merely the tip of an iceberg. Senate Republicans blanketly refused to consider nominees for federal judgeships by Democrat President Barack Obama, leaving open vacancies which were rapidly filled once Republican President Donald Trump was in office.

At the close of the 2010s, with a solid 5–4 conservative majority, thanks to politically-rigged court packing, SCOTUS engineered rulings to suit their ideology, pitching precedents which opposed their program; thereby effectively substituting caprice for rule of law.

The majority proceeds, relying on one subversion of stare decisis to support another. We may as well not have principles about precedents at all. ~ Justice Elena Kagan, in dissent in Knick v. Scott (2019), joined by Justices Ruth Bader Ginsberg, Stephen Breyer, and Sonia Sotomayor

As federal judges have lifetime appointments, the power of a politicized judiciary lasts for decades. Through judicial rigging, the rightward trend in American politics in the early 21st century will have a lasting impact to mid-century, potentially thwarting any rational spasm of progressivism that citizens decide to take.

Judicial discrimination is only a facet of political corruption which may lead to increasing disillusion by the informed with the behind-the-scenes oligarchy of the United States, which is only hypothetically a nation responsive to the will of the people.

The continuing slaughter of innocents in public places by well-armed madmen is illustrative. Though majority opinion to do something about this societal illness is strong, an obstinate right-wing minority is able to enforce its will, with the courts’ blessing.

3rd is the power of the courts to favor whomever they please, which leads to the larger point. The government uniformly supports plutocratic power. This axiomatic conservatism emanates from both fear and awe. Government officials identify with power, which corporations reek of. Corporate mouthpieces are the most elegant that money can buy. Their eloquence greases the gears of Congressional action and judicial decisions.

The fear which sits ever in the backs of political minds is perhaps even stronger. A world where US corporations are weakened is a harrowing thought. The government is ever reticent to disadvantage corporate interests when the public interest is not dangerously contravened.

Each branch of government has its own set of tools, blunt or sharp in their effect, to pursue empowering the state and favored interests at ordinary citizens’ expense. Through legislation, Congress ineptly paints in broad strokes. Through case law, the courts draw finer lines, weaving through time such a fine web that the judicial spider may snare whatever or whomever it pleases.

One may reflect upon the ceaseless bickering among the halls of power in government (particularly Congress) and consider it of some significance; but it is only pettiness at play between factions. No US government official denounces capitalism. Acts contrary to the interests of corporations are taken only when the pillage has gotten way out of hand; and then, relying upon the short memories of voters, soon rescinded.