Courts

Pauline Newman's Dissents Get More Attention Than Her Coworkers Making Up Medical Conditions About Her

All this stress over a person trying to work!

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Silhouette of gavelPauline Newman once again graces headlines because of a dissenting opinion. She’s part of an ongoing dispute alleging that she’s too old to do her job as a judge. Given the optics, you can’t just oust a judge because they’re 96 — instead, the focus has been on her health issues and her dissents. There are just two problems. The first is that she pulled a clean bill of health. Second, sure she dissents a bit, but that generally isn’t newsworthy.

Judges aren’t obligated to be jurisprudentially agreeable — they are obligated to pass well-reasoned judgments, which she did in the case at hand involving Realtime Data LLC. I’d understand if it she wrote a dissent that was morally objectionable, like overruling the laws that prevent child workers in coal mines, but you’d have to go to Clarence Thomas and Neil Gorsuch for that. This was just a run-of-the-mill case that deals with something generally less interesting than child labor: Section 101 of the Patent Act. Yes, she sat on a panel decision, but it isn’t like the justifications for her opinion came to her in a dream — other people are of like mind. From Law.com:

Embattled 96-year-old Federal Circuit Judge Pauline Newman dissented Wednesday from a decision invalidating data compression patents for claiming abstract ideas, and criticized current patent eligibility law as “unnecessary and confusing” and diverged from its “historical purpose.”

The four-page dissent also put together a litany of comments critical of eligibility law for depriving inventions of patent protection. For instance, Judge Newman cited former Rep. Doug Collins, R-Ga., who called this use of Section 101 “unthinkable” when he was still in office, and Michael Xun Liu, an associate at Williams & Connolly LLP who called current patent eligibility law a “morass of seemingly conflicting judicial decisions” in a journal article.

If a person were oblivious to the surrounding circumstances, they’d think that was just another dissenting opinion where capable judges didn’t see eye to eye. Instead, her every word is being combed over for signs of a mind out of commission.

There is no shortage of bad opinions and poor takes that need to be in the public eye. You want judicial failures? Let’s talk about Clarence Thomas’s playground take on what the word “trust” means for America’s Native treaty jurisprudence. If you want to talk about bad takes, what better way to honor Trump’s indictment than bringing up that time he called a TV station to make sure that they knew Trump Tower was now the tallest building in Manhattan on account of the 9/11 attacks. But this? Pauline’s reasoning, even if it isn’t shared by the majority, seems well-reasoned enough.

When given the opportunity, Pauline shared her thoughts on why her colleagues would go so far as to make up a heart attack that medical providers show didn’t happen. Put simply, she thinks that it’s because she dissents too much. Considering this, I think that news sources risk assisting a smear campaign by associating her competency investigations with her dissents without addressing the elephant in the room. Are her dissents reasonable? If so, don’t they stand as evidence of mental fitness with regard to the execution of her judicial responsibilities? There may be other legitimate concerns to tarry with, but emphasizing her tendency to dissent reads like a red herring.

Amid Competency Investigation, Newman Dissents Again [Law.com]

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Earlier: A Lifetime-Appointed Judge Was Accused Of Not Being Able To Do Her Job. She Brought Receipts.

Chris Williams became a social media manager and assistant editor for Above the Law in June 2021. Prior to joining the staff, he moonlighted as a minor Memelord™ in the Facebook group Law School Memes for Edgy T14s.  He endured Missouri long enough to graduate from Washington University in St. Louis School of Law. He is a former boatbuilder who cannot swim, a published author on critical race theory, philosophy, and humor, and has a love for cycling that occasionally annoys his peers. You can reach him by email at cwilliams@abovethelaw.com and by tweet at @WritesForRent.

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