February 27, 2019 10:03AM

Justice Sotomayor on the “Stacked Deck” of Administrative Law

Last week the Supreme Court heard oral argument in Return Mail Inc. v. USPS, posing the patent law issue (to quote SCOTUSBlog) of “Whether the government is a ‘person’ who may petition to institute review proceedings under the Leahy-Smith America Invents Act.” On pp. 30-31 of the transcript, Justice Sonia Sotomayor referred favorably to the Cato Institute’s brief on the unique dangers that can arise when federal agencies litigate before tribunals operated by federal agencies.

And that wasn’t even the best part! This was, from her comments immediately afterward, on the failure of the law to specify whether the word “person” includes the government:

It does seem like the deck is stacked against a private citizen who is dragged into these proceedings. They’ve got an executive agency acting as judge with an executive director who can pick the judges, who can substitute judges, can reexamine what those judges say, and change the ruling, and you’ve got another government agency being the prosecutor at the same time.

In those situations, shouldn’t you have a clear and express rule?

[cross-posted from Overlawyered]