Oral argument from the court.
Oct. 4 2001 3:00 AM

Corn Porn


It's been a few weeks now, and I must confess to being bored with the claim that desperate times call for indiscriminate suspensions of democratic freedoms. I'm not talking about the military curtailing my right to know about troop movements. I'm thinking more of Rudy Giuliani's conviction that his role as mayor is more important than election law, or Ari Fleischer's conviction that curbing comedy is more important than free speech, or John Ashcroft's conviction that law enforcement powers are more important than the Magna Carta. Why does the best defense of our free democratic system of government require reverting to a 16th-century monarchy?


So, today we at Slate propose a bold strike back for the forces of populism and the democratic way. (Nothing that will hamper the war effort or discomfit Slate advertisers, however.) I merely propose that the Supreme Court allow for one annual grant of certiorari based on a national write-in ballot.

Dahlia Lithwick Dahlia Lithwick

Dahlia Lithwick writes about the courts and the law for Slate and hosts the podcast Amicus.

Many of us stagger around under the misapprehension that the high court mechanically grants certiorari (agrees to hear a case) as vital constitutional issues come before them. The truth is that the voting on which cases to hear and which to deny is as political as the voting on the outcomes of the cases themselves. Some justices will vote not to hear a case precisely because there's a vital constitutional issue before them, feeling that they don't like the facts of the particular case or its posture or the ideology of this year's court. All of which would be fine were it not for the incredible logjams created in the lower courts, which are waiting to have unsettled issues resolved clearly, so that they might do their jobs.

I say all this to make the following point: The high court hears approximately 80 cases a year and declines to hear hundreds more, which is OK because they're only human. But when one of the cases they do hear concerns whether or not one might patent sexually reproduced, genetically engineered hybrid corn, while one of the cases they do not hear concerns the constitutionality of racial profiling or the proper test for affirmative-action programs in public universities, well, that gets me a little steamed.

Steamed. Which brings us back to corn. The case, J.E.M. Agricultural Supply v. Pioneer Hi-Bred, involves a patent infringement suit against an agricultural supplier (J.E.M.) that was selling sexy hybrid corn seeds on which Pioneer Hi-Bred holds the patents. J.E.M. countersued Pioneer claiming Pioneer's patents were invalid because Congress had superseded the original "utility" patent law with two specialized intellectual property statutes concerning plants. J.E.M. is essentially arguing that it is not liable under standard patent law, because genetically engineered plants cannot be protected with ordinary patents. Whether the corn in question falls under the protection of the 1930 or 1970 plant statute turns on whether it's reproduced sexually or asexually. Which tells me far more about where corn comes from than I ever needed to know.


Never mind that in Diamond v. Chakrabarty, a 1980 case, the Supreme Court held in that another living thing (in that case, an artificially generated oil-eating bacterium) constituted patentable subject matter. Never mind the sweeping language of Chakrabarty indicating that "everything under the sun made by man" is patentable (presumably even including sexy corn). Never mind that plain old utility patents have been granted by the Patent and Trademark Office for over 15 years to people seeking to patent plants. And never mind that J.E.M. failed to prevail on its nutty claim in the district court or in the Court of Appeals for the Federal Circuit. J.E.M. thought it'd appeal just one more time. And the court agreed to hear it.

Top 10 Pieces of Evidence That the Court Did Not Really Need To Hear This Case

10. Justice Scalia does not speak.

9. Attorney Bruce Johnson, arguing for J.E.M., is allowed to speak for at least four uninterrupted minutes without questioning, as justices shuffle papers and sip water.


8. Johnson's entire case turns on the argument that Congress expressly intended for the special plant statutes to supersede ordinary patent law, which he can at no time prove, because there is no proof for this proposition.

7. Justice O'Connor is not present because she's had to recuse herself from hearing this case, for reasons she is not required to provide but which inevitably concern her stock portfolio.

6. No one in the courtroom can find authority for the legal holding that a bacterium is a plant until Justice Souter is forced to say: "My dictionary holds it."

5. When Edmund Sease begins to argue for Pioneer, Justice Kennedy interrupts him with a "question" which is in fact a statement of why Sease wins the case. Realizing he's done this, Kennedy concludes, "I take it that's your position," to which Sease has the sense to say, "Yes."


4. Justice Thomas is joined for portions of his ritual nap by—in no particular order—Breyer, Scalia, and opposing counsel. Even sexy corn cannot keep them awake.

3. The only affect or animation on the bench arises pursuant to a boisterous exchange between justices over what happens to patented seeds that aren't planted. Can they be planted the next year under the terms of the patent? "Throw them in the river?" suggests Kennedy. "Feed them to the birds?" suggests Rehnquist.

2. There was never any question that J.E.M. would lose this appeal.

1. As Bruce Johnson, attorney for J.E.M., rises for his final rebuttal, Chief Justice Rehnquist says, "You have 10 seconds remaining, we'll round down, this case is submitted." Johnson misunderstands and attempts to address the court and ends up standing at the lectern, mouth agape, as the justices flee the bench.

Right. Let's all agree that while the problems of patenting porno corn may or may not be spectacularly compelling, hearing this particular case was a colossal waste of the court's time. Let's further agree that at least some of the cases on which the high court has refused to grant cert. for this term are vitally important matters of national concern. So howabout open voting, à la All Stars, for a single case that the Supreme Court must hear this term? You can pick any case the court has already refused to hear this year, either from last spring or this fall. Might I suggest Hopwood v. Texas (finally clarifying affirmative action in public schools); or Brown v. City of Oneonta (the racial profiling case); or Nichols v. United States (Terry Nichols' claim that maybe all that evidence never turned over to his lawyers by the FBI might impact his case); or Elkhart (the display of the Ten Commandments); or (and I confess this one's a favorite ...) Amway v. Procter & Gamble, the case that's taken six years, 15 lawsuits, tens of millions of dollars, 60 lawyers, and 2 million pages of filings to settle a rumor started by Amway linking Procter & Gamble to Satan worshippers.

Send your vote to certocracy@hotmail.com. I promise to use my not-inconsiderable influence with the court (I once saw Justice Breyer in the cafeteria) to try to make your voices and cases heard at the high court.