The least significant cases of the decade

A scientific analysis.

The Patent Act requires that a patent specification be written “in such full, clear, concise, and exact terms as to enable any person skilled in the art … to make and use” the invention. On May 18, 2023, the Supreme Court ruled in Amgen Inc. v. Sanofi that two of Amgen’s patent specifications failed this requirement, and that the corresponding claims were therefore invalid. As I’ve previously explained, I agree that Amgen’s claims are invalid and I’m pleased that Amgen came out the right way.

Amgen is unlikely to go down as a landmark decision in patent law. Indeed, it is not clear why the Supreme Court granted certiorari at all. The district court found that the claims were invalid. The Federal Circuit unanimously agreed that the claims were invalid. The Supreme Court called for the views of the Solicitor General, who agreed with the district court and the Federal Circuit that the claims were invalid and recommended denying certiorari. The Supreme Court granted certiorari anyway and unanimously affirmed the Federal Circuit, with reasoning that was essentially identical to the Federal Circuit’s reasoning. The law therefore stands exactly where it stood before Amgen.

Reflecting on Amgen’s lack of significance, I wondered whether anyone has ever conducted a systematic analysis of insignificant Supreme Court cases. An extremely cursory search revealed the answer to be no. While Professor Currie and then-Professor Easterbrook wrote classic pieces about the least significant Supreme Court Justices, an evaluation of the least significant cases does not seem to have been attempted. There was, as my law-professor friends are so fond of saying, a gap in the literature.

I felt compelled to fill this gap for the same reason that George Mallory sought to climb Mount Everest: because it is there. Specifically, I undertook to identify the ten least significant cases in recent history. I analyzed the Supreme Court’s current incomplete term and the previous ten full terms, dating back to the 2012-13 term.

Rather than take a low-class ad hoc approach, I decided to use science. I rated cases from 0 to 10 in the following five categories:

• Interesting facts. Spicier facts got higher scores. Criminal cases tended to do better in this category than civil cases … COPS has been on the air since 1989 and is apparently still going, so I guess crime is interesting, whereas there is no reality show about, say, debentures.

• Interesting law. Cases that raised novel or generalizable legal issues got higher scores.

• Difficulty. The more difficult the legal issue, the higher the score. In my opinion, holding all else equal, harder cases are more significant than easier cases. This is related to “interesting law,” but not quite the same: some easy cases are interesting and some boring cases are hard.

• Legal significance. If a case had the type of holding that would be cited a lot, it would get a higher score.

• Practical significance. Cases that had significant real-world impact, outside of the context of litigation, got higher scores.

Finally, recognizing that these categories may not fully account for all the factors that make a case insignificant, I reserved myself the right to add or remove points on a discretionary basis. After all, ascertaining the insignificance of cases is not just a science, but also an art.

Let us proceed.

9 (tied). Ritzen Group, Inc. v. Jackson Masonry, LLC, 140 S. Ct. 582 (2020).

• Interesting facts: 0

• Interesting law: 1

• Difficulty: 0

• Legal significance: 3

• Practical significance: 2

• Discretionary addition: 1

• Total score: 7

In ordinary civil litigation, a litigant generally has to wait until the end of the case before appealing any interlocutory orders. There are a few exceptions—some statutory (preliminary injunction orders, denials of motions to compel arbitration) and some judge-made (denials of qualified immunity, habeas transportation orders), but usually, you have to wait.

Bankruptcy cases are different. Bankruptcy cases consist of an agglomeration of controversies between the debtor and various creditors and other stakeholders. Sometimes those controversies end —and become appealable—in the middle of the case. In bankruptcy, the test for determining whether a controversy is appealable is pretty much, “is it over?” If it’s over, it’s appealable.

Bullard v. Blue Hills Bank, 575 U.S. 496, 501 (2015), lays out these principles, so I’d consider Bullard a modestly significant case. Ritzen, by contrast, consists of an application of those principles to one specific type of order: a bankruptcy court’s denial of a creditor’s motion for relief from the automatic stay. The Supreme Court unanimously held that once the district court denies such a motion, the denial is appealable.

Why does Ritzen appear on this ignoble list? In addition to uninteresting facts (a breach-of-contract case involving real estate) and an uninteresting holding (the application of a settled rule to a particular type of order), Ritzen earned a 0 for difficulty. Isn’t it obvious that you shouldn’t have to wait until the end of the bankruptcy case to appeal a denial of relief from the automatic stay? At the end of the bankruptcy case, the automatic stay is done. So what are you appealing anyway? The Ritzen petitioner suggested that perhaps the appellate court should reconstruct what would have hypothetically happened if the creditor had been granted relief from the automatic stay in the middle of the case. Really?

Actually, no one had trouble with this case. The lower court said that the appeal takes place mid-case, and the Supreme Court unanimously affirmed, observing that “a majority of circuits and the leading treatises regard orders denying such motions as final, immediately appealable decisions.”

Ritzen does have a little bit of legal and practical significance, which prevented it from descending (ascending?) further on this list. I gave a discretionary addition of “1” because Ritzen was one of the first cases in which lawyers were afforded the opportunity for a two-minute intro, but the Chief Justice forgot about this new rule, yielding some jocular moments at the oral argument.

9 (tied). Texas v. New Mexico, 141 S. Ct. 509 (2020)

• Interesting facts: 2

• Interesting law: 0

• Difficulty: 2

• Legal significance: 0

• Practical significance: 3

• Discretionary addition: 0

• Total score: 7

The Constitution confers the Supreme Court with “original Jurisdiction” over “Controversies between two or more States.” From time to time, states will try to sue each other directly in the Supreme Court. These cases tend to be bland, often involving water law, although the Supreme Court’s original jurisdiction briefly entered the limelight when Texas filed an original action seeking to overturn the result of the 2020 presidential election. (It failed.)

The decade’s least significant original-jurisdiction case, selected from a small but august group of contenders, was Texas v. New Mexico, 141 S. Ct. 509 (2020). (Not to be confused with Texas v. New Mexico, 138 S. Ct. 954 (2018), which was, while not exactly significant, less insignificant.) In 1988, the Supreme Court resolved a dispute between Texas and New Mexico over equitable apportionment of the Pecos River’s water. Among other things, the Supreme Court adopted something called the “River Master’s Manual.” This “Manual” says, among other things, that if water is stored in New Mexico “at the request of Texas,” then New Mexico’s delivery obligation “will be reduced by the amount of reservoir losses attributable to its storage.” The question in 2020’s iteration of Texas v. New Mexico was whether evaporated water counted as stored water. There was also some bare-knuckles litigation over whether New Mexico had waived its evaporated-water argument. New Mexico prevailed: its argument wasn’t waived, and evaporated water counted.

The proper interpretation of the River Master’s Manual as applied to evaporated water earned a “0” for interesting law. It similarly earned a “0” for legal significance: remarkably, Texas v. New Mexico has not been cited a single time by any court. I gave a “1” for interesting facts because the case arose out of a tropical storm, which is the kind of thing that might be featured on the Discovery Channel. I was compelled to give a “2” for difficulty because Justice Alito wrote a solo dissent, and if the Court was divided, the case couldn’t be that easy. That said, the majority opinion does not respond to the dissent, and the dissent does not take a clear position on how the case should have come out, so it is very hard to tell whether the case is difficult or not. (While on the topic of solo dissents in original jurisdiction cases, I cannot help but mention Justice Scalia’s dissent in Montana v. Wyoming, 563 U.S. 368 (2011), widely recognized as one of the greatest Scalia dissents of all time.)

As for practical significance, well, as an effete East Coaster, it’s hard to understand the importance of these water law cases. Water always comes out of the tap when I open it, and there seem to be lots of lakes in America, so why are we arguing about water? But OK, I understand these water disputes are really important in the West, so I gave it a 3. That said, the Justices had no idea at oral argument of the practical significance of the case. Sample oral argument question: “What would happen if you win as opposed to what would happen if you lose?”

6 (tied). Manrique v. United States, 137 S. Ct. 1266 (2017)

• Interesting facts: 0

• Interesting law: 0

• Difficulty: 3

• Legal significance: 2

• Practical significance: 0

• Discretionary addition: 1

• Total score: 6

Manrique was the decade’s least significant criminal case, and it wasn’t even close. There were a number of low-wattage criminal cases, but Manrique ran away from the field like Secretariat at the 1973 Belmont.

Manrique was convicted of possessing child pornography. The district court sentenced him a term of imprisonment. Manrique’s lawyer filed a timely notice of appeal. Months later, the district court entered an amended judgment directing Manrique to pay $4,500 in restitution to one of the victims of his crime (i.e., an individual appearing in the images). Manrique’s lawyer did not file a second notice of appeal, but challenged the restitution order in his appellate brief anyway.

The question in Manrique was whether a second notice of appeal was needed to challenge the restitution order on appeal. Held: yes, a second notice of appeal was needed. The post-sentencing notice of appeal wasn’t good enough: a notice of appeal covers judgments in the past, not judgments in the future.

Manrique combines depressing facts, an uninteresting holding, and a lack of practical significance. Lawyers often screw up and forget to files notices of appeal, so I reluctantly gave it a 2 for legal significance. I gave it a 3 for difficulty because Justice Ginsburg, joined by Justice Sotomayor, dissented. Justice Ginsburg agreed with the basic view that a notice of appeal doesn’t cover orders that don’t yet exist, but concluded that the district court clerk’s decision to transmit the amended judgment to the appellate court was “tantamount to” a second notice of appeal. I dunno about that, but who am I to argue with the Notorious RBG on a procedural issue? So, 3 out of 10 seemed appropriate. I also added 1 discretionary point because Manrique took more than six months after oral argument to come out, which prompted a lot of confused speculation at the time. Perhaps we will find out what truly happened in Manrique when some Justice releases her papers in the year 2090.

6 (tied). San Antonio v. Hotels.com, 141 S. Ct. 1628 (2021).

• Interesting facts: 0

• Interesting law: 0

• Difficulty: 2

• Legal significance: 4

• Practical significance: 0

• Discretionary addition: 0

• Total score: 6

San Antonio and some other cities sued Hotels.com for not paying enough taxes. The district court held that Hotels.com didn’t pay enough taxes. The Fifth Circuit reversed, holding that Hotels.com paid enough taxes after all.

That sounds boring, but San Antonio v. Hotels.com wasn’t about that tax dispute. After the district court ruled that Hotels.com didn’t pay enough taxes, Hotels.com posted a bond to avoid paying the judgment. After Hotels.com won in the Fifth Circuit, it went back to the district court and argued that San Antonio should reimburse it for the $2.2 million it spent on bond premiums. San Antonio balked.

That sounds boring too, but San Antonio v. Hotels.com wasn’t even about whether San Antonio should have to pay the $2.2 million. Instead the question was, who decides whether the plaintiff must reimburse the defendant for the bond premiums, the court of appeals or the district court? Held: the court of appeals.

San Antonio v. Hotels.com checks all the boxes of insignificance. The underlying dispute over taxes is dull; the legal issue involves the interpretation of a sui generis Federal Rule of Appellate Procedure that can easily be amended; the case merely addresses which court should make a decision rather than what the rule of decision should be; and it was a 9-0 affirmance, with no separate opinions. How, then, did it earn 6 points? I felt I had to give it a “4” for legal significance because disputes over appellate costs happen all the time, plus a “2” for difficulty because, despite the unanimous affirmance, the case didn’t seem that obvious to me (the Justice Department filed an amicus brief supporting the other side).

6 (tied). U.S. Bank National Association v. Village at Lakeridge, 138 S. Ct. 960 (2018)

• Interesting facts: 0

• Interesting law: 2

• Difficulty: 0

• Legal significance: 2

• Practical significance: 0

• Discretionary addition: 2

• Total score: 6

U.S. Bank was the weirdest cert grant of the decade.

In Chapter 11 bankruptcies, the debtor reorganizes according to a “plan.” Sometimes, one or more creditors don’t like the plan, but the bankruptcy court imposes it anyway. This is called a “cramdown” plan.

Not every creditor has to consent to the “cramdown” plan. But “at least one class of claims that is impaired under the plan” must consent to the plan, provided that the consenting creditor isn’t an “insider.”

What’s an “insider”? The Bankruptcy Code’s “Definitions” section has a laundry list of types of “insiders.” But the Definitions section doesn’t say this list is exhaustive; it says that “insider” “includes” the items on the list. So courts have devised various tests to determine whether a creditor who doesn’t fall into any of enumerated categories of “insiders” is, nonetheless, an insider. In Bankruptcy World, such creditors have been saddled with the hideously misleading phrase “non-statutory insiders.”

In U.S. Bank, the bankruptcy court held that the girlfriend of one of the debtor’s officers wasn’t a “non-statutory insider.” Applying clear error review, the Ninth Circuit affirmed. An unhappy creditor filed a cert petition, arguing that the Ninth Circuit used the wrong standard for deciding who qualifies as a “non-statutory insider.” But it also made the fateful decision to include, as a separate question presented, whether the Ninth Circuit should have applied de novo as opposed to clear error review.

The Supreme Court called for the views of the Solicitor General, who recommended denying cert. Rather than follow the Solicitor General’s advice, the Court granted certiorari only on the standard of review issue and not on the substantive question of what a “non-statutory insider” means.

This made no sense. In addition to the extremely esoteric nature of this issue, the Supreme Court has never decided when, if ever, someone could even be a “non-statutory insider.” How could the Court determine the standard of review for a particular type of determination when it didn’t even know what that determination was? Also, the Ninth Circuit felt that “non-statutory insider” status turned on whether the parties had been in an “arm’s length transaction,” and this is clearly a fact-intensive determination and not a question of law. So obviously not de novo, so why is the Supreme Court granting certiorari on this issue?

There was some speculation at the time that the Court meant to grant certiorari on the substantive issue of “what’s a non-statutory insider?” but made a typographical error in the order granting certiorari, but didn’t realize its error until after the baffled parties submitted their briefs, after which the Court decided, whatever, let’s go with it. Whatever actually happened, the outcome was predictable: the Supreme Court unanimously affirmed. Justice Sotomayor filed a concurrence joined by three other Justices (Thomas, Kennedy, and Gorsuch) saying that the decision might be irrelevant because the Ninth Circuit’s substantive standard might be wrong, and Justice Kennedy filed a separate concurrence also stating that the Ninth Circuit’s substantive standard might be wrong.

Standards of review are moderately interesting, and any case about standards of review is going to get cited, so U.S. Bank got 2 points in both the “interesting law” and “legal significance” categories. I added two discretionary points because there were two concurrences, one of which had a strange mix of Justices. Truly insignificant cases don’t have concurrences.

5. Town of Chester v. Laroe Estates, 137 S. Ct. 1645 (2017).

• Interesting facts: 0

• Interesting law: 0

• Difficulty: 0

• Legal significance: 3

• Practical significance: 0

• Discretionary addition: 2

• Total score: 5

In a field of strong contenders, Chester stood out from the pack as the least significant constitutional case of the decade.

Federal Rule of Civil Procedure 24(a)(2) gives a litigant the right to intervene in a case if, among other things, the litigant “claims an interest relating to the property or transaction that is the subject of the action.” The question in Town of Chester was whether a Rule 24(a)(2) intervenor had to have Article III standing.

This question seems bizarre because, how it is even theoretically possible that a litigant has “an interest relating to the property or transaction that is the subject of the action” but doesn’t have standing? No one was really sure. But the Second Circuit decided to let a litigant intervene while assuming, without deciding, that the intervenor had standing, thus (sort of) teeing up this issue.

The Supreme Court held that if the would-be intervenor sought relief that differed from the relief sought by the plaintiff, the would-be intervenor had to have standing. This seemed pretty intuitive and wasn’t even disputed by the parties. The Court then remanded and washed its hands of the case. So the holding of Town of Chester is as follows: a proposition that the parties agreed upon and that was irrelevant in any real case is, in fact, a true proposition.

I gave Town of Chester a 3 for “legal significance” because it’s a case one would naturally cite any time there’s litigation over an intervention motion. And I threw in two discretionary points because this is a case about the Constitution. Adequate reverence for our Nation’s founding charter required me to give the case a little boost. What am I, a Communist?

4. National Association of Manufacturers v. Department of Defense, 138 S. Ct. 617 (2018)

• Interesting facts: 2

• Interesting law: 0

• Difficulty: 2

• Legal significance: 0

• Practical significance: 0

• Discretionary addition: 0

• Total score: 4

“Nothing is more wasteful than litigation about where to litigate, particularly when the options are all courts within the same legal system that will apply the same law.” Bowen v. Massachusetts, 487 U.S. 879, 930 (1988) (Scalia, J., dissenting). And that is what NAM v. DOD is about. In 2015, the EPA and the Army Corps of Engineers promulgated a rule clarifying the meaning of the statutory phrase “waters of the United States.” This is a hugely important issue, and the Supreme Court’s recent decision interpreting that phrase in Sackett v. EPA is a hugely important case. However, NAM v. DOD did not address the legality of the rule. Instead, the question was: do judicial challenges to the “waters of the United States” rule go directly to the court of appeals, or first to the district court and then to the court of appeals? Held: first district court, then court of appeals.

This dispute had no practical significance because challenges would end up in the court of appeals no matter what; the sole question was whether they’d hit the district court along the way. Also, there was nothing interesting about the legal analysis. There’s a statute listing seven types of challenges to EPA actions that go to the court of appeals. No one had any idea how Congress came up with this list. The following oral argument questioning was illustrative:

JUSTICE KAGAN: So your basic view is, look, you should just resign yourself to thinking of this as having no particular rationale. Congress said what it said. Nobody can figure out what the reasons are that Congress included those things and not other things. It's all a themeless pudding and that's just what it is?

…

MR. BISHOP: Yes. I think, you know, if someone can come up with an explanation of this that makes sense, I'm very happy to hear it. I have yet to hear one.

And Mr. Bishop’s side won the case! The Supreme Court held that the particular type of challenge before the Court did not fall within this random list.

NAM v. DOD earned zeros for interest, legal significance, and practical significance. I gave “2” for interesting facts because the underlying dispute, over the waters of the United States issue, was pretty hot. And I gave “2” for difficulty because the Court’s opinion went on for 20 pages, so it couldn’t have been that easy, although actually I have no idea.

2 (tied). Hamer v. Neighborhood Housing Services, 138 S. Ct. 13 (2017).

• Interesting facts: 0

• Interesting law: 0

• Difficulty: 0

• Legal significance: 3

• Practical significance: 0

• Discretionary addition: 0

• Total score: 3

Legal requirements are sometimes “jurisdictional” and sometimes “non-jurisdictional.” There are various differences between these two classifications; for instance, jurisdictional requirements can’t be waived, but non-jurisdictional requirements can.

Cases addressing whether particular requirements are jurisdictional or non-jurisdictional are hardy perennials on the Supreme Court’s docket. These cases are extremely boring because they always come out the same way: “non-jurisdictional” always wins. To first approximation, federal rules of procedure are always non-jurisdictional and federal statutes are also always non-jurisdictional unless they explicitly say “this is jurisdictional.” There’s one exception—the statutory time limit to file a notice of appeal is jurisdictional—but that’s basically the exception that proves the rule. In case after case after case after case, the Supreme Court says that a requirement isn’t jurisdictional because the label “jurisdictional” doesn’t appear on it.

Several of these cases were strong candidates for this list, but there could be room for only one. I went with Hamer, which held that Federal Rule of Civil Procedure 4(a)(5)(C) was non-jurisdictional. Federal Rules are always non-jurisdictional, so this was an easy one. In arguing to the contrary, the respondent bravely argued that Congress meant to put Rule 4(a)(5)(C) in a statute, but forgot. The Court politely said it would “resist speculating whether Congress acted inadvertently.”

For reasons which are not clear to me, Hamer has been cited over 1,000 times, so I had to give it a “3” for legal significance, but its zeroes in every other category are honorably earned.

2 (tied). Culbertson v. Berryhill, 139 S. Ct. 517 (2019).

• Interesting facts: 0

• Interesting law: 0

• Difficulty: 0

• Legal significance: 0

• Practical significance: 2

• Discretionary addition: 1

• Total score: 3

The first paragraph of Culbertson v. Berryhill lays out the issue with admirable clarity:

Federal law regulates the fees that attorneys may charge Social Security claimants for representation before the Social Security Administration and a reviewing court. See 42 U.S.C. §§ 406(a)-(b). The question in this case is whether the statutory scheme limits the aggregate amount of fees for both stages of representation to 25% of the claimant's past-due benefits. Because § 406(b) by its terms imposes a 25% cap on fees only for representation before a court, and § 406(a) has separate caps on fees for representation before the agency, we hold that the statute does not impose a 25% cap on aggregate fees.

Culbertson is a deadly combination of narrow, boring, and easy. In fact, it was so easy that the government confessed error and the Court had to appoint an amicus to defend the Eleventh Circuit’s judgment. Justice Thomas appointed an outside-the-Beltway amicus, which got a tiny amount of press from the inside-the-Beltway lawyers who monitor these things, thus yielding a single discretionary point. The case does have some practical significance because it will either further impoverish people on social security or give lawyers an incentive to represent social security claimants, depending on how you look at it.

And now, we’ve reached the climactic moment. What’s the least significant case of the last ten terms?

To whet your appetite, here is Dall-E on “boring cases, in the style of Vermeer”

And Dall-E on “boring cases, in the style of vaporwave”

And here we go…

1. Kloeckner v. Solis, 568 U.S. 41 (2012)

• Interesting facts: 0

• Interesting law: 0

• Difficulty: 0

• Legal significance: 0

• Practical significance: 0

• Discretionary addition: 0

• Total score: 0

In 1078, St. Anselm of Canterbury offered the first rendition of the ontological proof of God’s existence. It went roughly like this: suppose it is impossible to conceive of anything greater than God. We know people think about God, so God exists in people’s minds. But things that exist are greater than things that don’t exist. Therefore, if nothing is greater than God and God exists in one’s mind, then God must also exist in reality.

Based on similar reasoning, I always believed I’d find a case so insignificant that it would earn zero points on this scale. After all, isn’t it folk wisdom that things are often less significant in reality than they seem in our minds? So if I could think of a zero-point case in my mind, an even less significant zero-point case must exist in reality. But I despaired of finding one until one of the last cases I looked at, from early in the 2012-13 term: Kloeckner v. Solis.

Carolyn Kloeckner worked at the Department of Labor. Then she was fired. Relying on federal civil service protections, she challenged her firing in the Merit Systems Protection Board. She believed her firing was based on discrimination, hence creating a so-called “mixed case” (i.e., discrimination claims are “mixed” with a civil service appeal). For reasons too complicated and boring to describe, her Merit Systems Protection Board challenge was dismissed for a procedural reason.

The question in Kloeckner was whether, in this specific situation, a judicial challenge to the firing should be filed in federal district court, or instead, the Federal Circuit. Held: The challenge goes to federal district court.

There is nothing redeeming about Kloeckner.

• The facts are not interesting. A federal employee was in a dispute with her employer. We are told almost nothing about this dispute.

• The case concerns the interpretation of some random corner of the Civil Service Reform Act. There are no interesting conceptual issues in Kloeckner.

• Kloeckner is an extremely easy case. The statute unambiguously sends plaintiffs to federal district court. The government’s contrary argument was some weird theory hinging on the phrase “judicially reviewable action” meaning something different from an action that’s judicially reviewable.

• The stakes are remarkably low. All employees in Ms. Kloeckner’s situation will eventually get to a federal appellate court. The sole question is whether they file first in federal district court before going to the federal appellate court.

I thought about giving Kloeckner some “legal significance” points because district courts do rely on it to confirm they have jurisdiction over lawsuits by federal employees. Also, there is a follow-on case to Kloeckner, called Perry v. MSPB, which concerns the jurisdictional treatment of “mixed cases” in a slightly different situation. (Perry had a dissent, and some funny-ish moments at oral argument, so it didn’t make the top ten.) But I felt the follow-on cases had zero legal significance too, so Kloeckner’s arguable relevance to the follow-on cases didn’t earn it any points, at least in my book.

Have a great Memorial Day everyone!