Chief Justice John Roberts (Credit: AP)

In 2000, a pharmaceutical company named Solvay obtained a patent for a drug called “AndroGel,” which is used to treat men with low testosterone levels. Shortly thereafter, several of Solvay’s competitors sought to market generic versions of the same drug, claiming that Solvay’s patent for the testosterone replacement gel was invalid. These claims were never resolved, however, due to a settlement agreement where Solvay agreed to pay its competitors millions of dollars if they abandoned their efforts to cut into Solvay’s monopoly until August of 2015. This settlement, according to the Federal Trade Commission, was an agreement by generic drug manufacturers “to share in Solvay’s monopoly profits, abandon their patent challenges, and refrain from launching their low-cost generic products to compete with AndroGel for nine years.”

In other words, the FTC alleged, Solvay got to keep charging monopoly rates for its drug. Its competitors got a cut of the profits. And consumers got the shaft, in the form of higher drug prices.

Thanks to the Supreme Court’s decision yesterday in FTC v. Actavis, an FTC lawsuit challenging this settlement will move forward. Conservative Justices Antonin Scalia and Clarence Thomas, however, joined an opinion by Chief Justice John Roberts that would have given the Court’s effective blessing to the AndroGel settlement (Justice Samuel Alito was recused from the case).

The legal issue in the case involves a complex question of what happens when federal antitrust law runs headlong into federal patent law. On the one hand, allowing a company to simply pay its competitors not to enter the market would defeat the entire purpose of antitrust law and open the door to monopolies in every marketplace. On the other hand, the whole point of patents is to give inventors a temporary monopoly in order to encourage them to pursue their inventions. Drug companies would have little incentive to create new drugs if their discoveries could be poached immediately after they are created.

Yet, patent law does not allow someone to unilaterally proclaim that they invented a product and then change monopoly prices for it. As Justice Breyer explains in the majority opinion, “a valid patent excludes all except its owner from the use of the protected process or product,” Breyer’s opinion explains, “[b]ut an invalidated patent carries with it no such right.” The whole point of cases like the FTC’s lawsuit is to prevent pharmaceutical companies from giving a wink and a nod to each other’s more doubtful patent claims in order to squeeze more money from consumers.

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Mandatory minimum prison sentences, statutorily imposed by legislatures, are among the major contributors to the U.S. incarceration epidemic. Many federal judges have recognized the injustice of these sentences, and lament that acts of Congress have tied their hands to issue sentences below the mandatory minimums, particularly when it comes to low-level drug offenders. Nevertheless, judges often exercise their authority to hand down sentences above the floor set by law.

In a decision issued Monday, the U.S. Supreme Court held in a splintered 5-4 ruling that judges do not get to raise the floor itself when deciding a criminal defendant’s sentence:

Any fact that, by law, increases the penalty for a crime is an “element” that must be submitted to the jury and found beyond a reasonable doubt. Mandatory minimum sentences increase the penalty for a crime. It follows, then, that any fact that increases the mandatory minimum is an “element” that must be submitted to the jury.

The case involved Allen Alleyne, who was convicted for robbing a convenience store owner as he drove to make a bank deposit. The jury found Alleyne guilty of both having committed the robbery, and having used or carried a firearm. They acquitted him, however, of brandishing a firearm during the crime. The crime Alleyne was convicted of has a mandatory minimum sentence of five years. Had the jury determined that he brandished a firearm, the minimum would have been seven years.

Nonetheless, in sentencing Alleyne, the judge independently found that Alleyne should have known his accomplice would brandish a firearm during the robbery – thus bumping Alleyne up to the seven year minimum sentence. Unlike a jury, which is tasked with finding guilt “beyond a reasonable doubt,” the judge made this finding under the much lower standard of “preponderance of the evidence.” The judge then sentenced Alleyne to the (false) minimum of seven years.

This ruling may have a limited impact, as it does nothing to alter draconian mandatory minimum sentences, and judges still maintain significant discretion to sentence above the mandatory minimum, even without making findings that should have been left to the jury. As a practical matter, its impact may be limited to cases such as this one where a judge simultaneously sentences a criminal defendant to what he believes to be the statutory minimum and gets that minimum sentence wrong.

As sentencing expert Doug Berman points out, the case’s most significant consequence may be that it signals the start of a trend toward putting more fact-finding decisions that influence judges’ calculations into the hands of the jury — a trend that could mitigate some of the harshest sentences doled out by judges. Federal District Judge Mark Bennett, who has been a vocal critic of both mandatory minimum sentences and stringent federal sentencing guidelines, recounted just this past weekend how his own survey of jurors has revealed the disconnect between public perceptions of a just sentence, and those imposed by mandatory minimums and federal guidelines:

The public is tough on crime except when they’re in an actual case. For 19 years after every criminal trial when the jury has found the defendant guilty, I ask them to write down … what you think would be an appropriate sentence for this defendant. Never once. Never once has a juror put down a sentence that even approaches what the likely [federal guideline or mandatory minimum] sentence would be. And I live in one of the most conservative parts of the United States.

Bennett’s comments came during a panel at the American Constitution Society’s national convention on the U.S. epidemic of mass incarceration, which even the Congressional Research Service has found is fueled in large part by mandatory minimum sentences. While today’s ruling shed light on these sentences, it will likely take another act of Congress to meaningfully mitigate their consequences.

This morning, the Supreme Court handed down a largely unanimous opinion holding that a “naturally occurring DNA segment is a product of nature and not patent eligible merely because it has been isolated, but that [synthetic DNA] is patent eligible because it is not naturally occurring.” This holding is consistent with longstanding law establishing that “[l]aws of nature, natural phenomena, and abstract ideas are not patentable,” but instead belong to all inventors and to the public at large.

The case, Association for Molecular Pathology v. Myriad Genetics concerned attempts to patent a scientific discovery of a particular gene that is tied to breast and ovarian cancer risk, in addition to attempts to patent man-made DNA sequence. Under the Court’s opinion, the first kind of discovery cannot be patented, but the later can.

All nine justices joined the bulk of the opinion, which was written by Justice Clarence Thomas, although Justice Antonin Scalia did not join some portions of the opinion “going into fine details of molecular biology.”

The U.S. Supreme Court on Monday upheld the use of DNA databases to collect genetic information from suspects arrested but not yet charged, without any requirement that officers first show probable cause. The 5-4 ruling overrules a state court determination that Maryland’s DNA collection law permits unconstitutionally invasive searches.

In the short term, the ruling means that law enforcement officials can collect DNA from anyone accused of a violent crime or burglary and upholds existing DNA collection laws in about 28 states. This DNA stays in a database and can serve as the basis for later accusing people of other, unrelated crimes. As the Maryland Supreme Court pointed out in their ruling, only 16 percent of people arrested for some felonies are eventually convicted, and more than one in four people charged with crimes that are much easier to prosecute are not convicted. This means widespread DNA testing ensnares a whole lot of innocent people. But even those who believe they could never be suspected of a violent crime may not be insulated from testing. Justice Antonin Scalia warns in a dissent joined by three of the court’s more liberal justices that the court’s reasoning would apply equally to someone accused of any crime or violation at all:

When there comes before us the taking of DNA from an arrestee for a traffic violation, the Court will predictably (and quite rightly) say, ‘We can find no significant difference between this case and King.’ Make no mistake about it: As an entirely predictable consequence of today’s decision, your DNA can be taken and entered into a national DNA database if you are ever arrested, rightly or wrongly, and for whatever reason.

Under the Fourth Amendment, each collection of DNA through a cheek swab is a warrantless, suspicionless search that must be justified by some other government interest. The majority says the searches are justified because they are a means of identifying suspects, much like fingerprints. But this reasoning is entirely unpersuasive to the dissenting justices, and could justify a whole host of DNA collection from anyone who flies on an airplane, applies for a driver’s license, or attends a public school.

The real efficacy of each of these tactics appears to be solving more crimes. In that respect, Justice Anthony Kennedy cites a previous U.S. Supreme Court case in which the court touted DNA’s “unparalleled ability both to exonerate the wrongly convicted and to identify the guilty.” What he doesn’t disclose is that in that 2009 case, the court unequivocally denied a defendant facing the death penalty access to his own DNA, even though he was willing to pay for tests at his own expense. Writing for the majority, Chief Justice John G. Roberts worried then that requiring defendants’ access their own DNA risks “unnecessarily overthrowing the established system of criminal justice.”

Both Justices Roberts and Kennedy appear to have abandoned that concern here, and dismissed the more pressing concern that Fourth Amendment protections no longer apply to arrestees, whose DNA, once collected, can be used as the sole basis for accusing an individual of other unrelated crimes. The result of these two decisions is that law enforcers have even greater access to more people’s DNA to initiate new prosecutions, while defendants’ access to even the DNA samples needed to expose egregious law enforcement errors in their own cases is continually thwarted.

A man who may be locked up for a murder he did not commit should not be allowed to challenge his conviction, according to Justice Antonin Scalia and his three most conservative colleagues. And three members of the Supreme Court seem to believe that most people jailed due to unconstitutional convictions should have no recourse to the federal courts. At least, that’s what emerges from a four justice dissenting opinion written by Scalia in a case dealing with the rights of state prisoners who may be “actually innocent” of the crime they were convicted of committing.

McQuiggin v. Perkins is a fairly unusual case. After being sentenced to life in prison for murder, Floyd Perkins spent years gathering three affidavits from witnesses corroborating his claim that another man committed the crime. Yet he sat on this new evidence for nearly six years before presenting it to a federal court. Justice Scalia’s dissent claims that a one year statute of limitations prevents Perkins from presenting six year-old evidence that he may be innocent. Justice Ruth Bader Ginsburg’s majority opinion holds that “actual innocence” may overcome this one year time limit, although she also requires prisoners in Perkins’ shoes to overcome a very high bar before their claims of innocence may succeed in federal court.

Beyond the narrow issue presented by this case, however, the final paragraphs of Scalia’s opinion — three paragraphs that conservative Justice Samuel Alito pointedly chooses not to endorse — suggest a massive contraction of prisoners’ rights. Earlier in his opinion, Scalia claims that state prisoners’ right to challenge their conviction in federal court was “radically expanded in the early or mid-20th century to include review of the merits of conviction and not merely jurisdiction of the convicting court.” This is likely a reference to a controversial theory, championed by a young future Chief Justice William Rehnquist and later promoted by a conservative law professor named Paul Bator, that federal courts traditionally could not overrule state convictions so long as the defendant enjoyed minimal safeguards such as “counsel to argue all his points to the trial court, [access to] the state appellate courts” and the ability to seek Supreme Court review.

Scalia’s final paragraphs claim that the practice of allowing broad challenges to unconstitutional state convictions, including cases where a state prisoner may in fact be innocent, was a “Faustian bargain that traded the simple elegance of the common-law writ of habeas corpus for federal-court power to probe the substantive merits of state-court convictions.” As Scalia warns, permitting state prisoners to challenge their conviction in federal court leads to “floods of stale, frivolous and repetitious petitions [which] inundate the docket of the lower courts and swell our own.”

Justice Scalia is correct that judges have to do more work if potential innocents are allowed to seek vindication. Unlike prisoners locked up for crimes they did not commit, however, those judges will also get to go home every day.