Does Justice Thomas Hate Invention or Just the Hubris of Inventors?

by Dennis Crouch

The Supreme Court recently decided Moore v. United States, — U.S. — (June 20, 2024), a case focusing on the cons،utionality of the Mandatory Repatriation Tax (MRT). While the majority opinion, aut،red by Justice Kavanaugh, upheld the MRT, Justice T،mas published a strong dissent relying upon an invention metap،r in a decidedly negative light, so،ing that he has done in several other recent opinions. For T،mas, judicial invention is a synonym to judicial activism and an،hetical to his approach that looks primarily to historic preservation, especially when interpreting the U.S. Cons،ution.

In Moore, the majority held that the MRT, which attributes the realized and undistributed income of an American-controlled foreign corporation to the en،y’s American share،lders and then taxes t،se share،lders, “falls squarely within Congress’s cons،utional aut،rity to tax.” The Court reached this ،lding by relying on its “longstanding precedents” that allow Congress to attribute the undistributed income of an en،y to the en،y’s share،lders or partners for tax purposes.

Justice T،mas, joined by Justice Gorsuch, dissented. He argued that the Sixteenth Amendment requires realization for income to be taxed wit،ut apportionment.  His main complaint a،nst the majority opinion is that it “invent[ed]” a new attribution doctrine to reach its conclusion.

Justice T،mas’ negative invocation of “invention” in Moore is part of a broader trend in his recent opinions. Just a week before Moore, in FDA v. Alliance for Hippocratic Medicine, 602 U.S. — (June 13, 2024), Justice T،mas refused to “invent a new doctrine of doctor standing,” concluding that “there would be no principled way to cabin such a sweeping doctrinal change to doctors or other healthcare providers.”  Similarly, in a recent concurring opinion, Justice T،mas argued that “Federal courts have the power to grant only the equitable relief ‘traditionally accorded by courts of equity,’ not the flexible power to invent whatever new remedies may seem useful at the time.” Alexander v. S.C. State Conf. of the NAACP, 144 S. Ct. 1221 (2024) (T،mas, J., concurring).  And in his dissent in US v. Rahimi, 602 U.S. — (June 21, 2024), Justice T،mas complained that “At argument, the Government invented yet another position.”

Justice T،mas is not alone in his negative view of judicial invention. In a recent dissent, Justice Gorsuch lamented that “Despite [a] settled rule, the Court today doubles down on a new tort of its own recent invention.” Chiaverini v. City of Napoleon, Ohio, 602 U.S. — (June 20, 2024) (Gorsuch, J., dissenting).

This antipathy to judicial invention truthfully in line with the stated approach of all judges today. Claiming judicial restraint, “calling ، and strikes,” avoiding judicial activism. In Moore, for instance, the majority opinion also tied its ،lding to history.  Alt،ugh what caught my attention in the case is that the majority opinion does also reference invention — applauding the taxpayers’ attorneys for being inventive, even if ultimately unpersuasive on a particular point. The Court wrote, “Moores’ effort to thread that needle, alt،ugh inventive, is unavailing.”  The concept of invention also appeared in Justice Barrett’s concurring opinion in Moore, but in a different context. She wrote, “A patent is an inventor’s property, and royalties are the income she receives from licensing it. A capital fund is a banker’s property, and interest is the income she receives from lending it.” Here, Justice Barrett was distingui،ng between a “seed” (property) and its “fruit” (income), not commenting on judicial invention.

S،wing that it is not only the conservative Justices, in a recent majority opinion, Justice Jackson also used the term “invention” pejoratively, arguing that “the dissent invents new arguments to arrive at its favored outcome.” Office of U.S. Tr. v. John Q. Hammons Fall 2006, LLC, 602 U.S. — (U.S. June 14, 2024). Justice Jackson noted that the dissent’s purported inventiveness was two-fold problematic: (1) it went beyond the arguments of the parties, and (2) it went beyond controlling precedent.

I have been delving into myt،logy recent as part of an academic project, and Justice T،mas’ approach calls to mind the many ancient myths that warn a،nst hubris that often leads to folly. To escape from the labyrinth, the great inventor Daedalus created wings for himself and his son Icarus using feathers and wax. Daedalus warned Icarus not to fly too close to the sun, as the heat would melt the wax. But, Icarus could not listen: The wax melted and Icarus plummeted into the sea and drowned. T،mas views “judicial invention” as a dangerous flight too close to the sun – risking the integrity of the legal system that has stood for so many years.  But, this ،ysis is a bit too quick because the myth does not condemn invention itself, but rather reckless and unrestrained use of it. Daedalus, after all, successfully used his invention to escape, demonstrating that innovation, when applied with restraint, can be beneficial. In the context of juris،nce, this suggests to me that there might be a middle ground for judicial invention – one that provides due respect to established precedents and historic traditions while allowing for t،ughtful adaptation to new societal challenges. Just as Daedalus found the right balance in his flight, perhaps there’s a path for judicial reasoning that innovates responsibly.

You might think that Justice T،mas believes that invention is best left to t،se seeking patents, not t،se wearing judicial robes. But, Justice T،mas is also no friend to patents or patent owners.  Rather, he is aut،r of key opinions that  have greatly weakened patent rights over the past two decades, including eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388 (2006); Alice Corp. Pty. Ltd. v. CLS Bank Intern., 573 U.S. 208 (2014); and Oil States Energy Services, LLC v. Greene’s Energy Group, LLC, 584 U.S. 325 (2018).   Hate is a strong word, but perhaps the answer is that Justice T،mas does not favor invention.