The US Supreme Court : Case Umpire or Guardian of the Constitution of the United States?

What is the role of the Supreme Court of the United States in the American judicial system? What is its role in the American governmental system?

Professor Geoffrey Stone, former Dean of the University of Chicago Law School, has an important posting at the University of Chicago Law School Faculty Blog titled Chief Justice Roberts and the Role of the Supreme Court, in which Stone expresses his misgivings about the troublesome views recently expressed by U.S. Supreme Court Chief Justice John Roberts on the role and responsibility of the U.S. Supreme Court.

Stone writes:

In a recent speech in Chicago, Chief Justice John Roberts stated that the Supreme Court functions best “when it can deliver one clear and focused opinion of the Court.” He lauded the importance of judicial “consensus,” arguing that cases should be decided “on narrow grounds” and that differences of opinion among the Justices generally should be expressed secretly in the Court’s private conferences, rather than in published dissenting or concurring opinions.

As [a] student of constitutional law … I find his understanding of the role and responsibility of the Supreme Court disturbing. It reflects the same rather simple understanding of our constitutional system as his assertion during his confirmation hearings that Supreme Court Justices are like baseball umpires, whose job it is simply to call the balls and strikes of constitutional law.

We supported the nomination of Roberts to his position as Chief Justice because of his impeccable track record and intellectual qualifications, but we have since criticized the new Chief Justice once already for his jurisprudential inertia and we worry that he will be a “do nothing” Chief Justice. A man in his position does not “follow” the rest of the country’s legal community, rather, he must be their leader. If he is not able to exercise this function, especially in a time of great turmoil in legal areas such as intellectual property law, he is in the wrong job. Note that our dissatisfaction with Roberts up to now has nothing to do with partisan politics but rather with the fact the Supreme Court seems to be dozing away while certain parts of the legal system – such as intellectual property law – are in a shambles.

What Stone writes about Roberts speaks to the fundamental core of the problem: what is the role and responsibility that the Supreme Court of the United States has in the American legal and political system, seen as a whole, and what is Roberts’s job in that system?

The Judicial Role of the US Supreme Court

Anyone who has a good grasp of the fundamental elements of American jurisprudence will certainly agree with Roberts – at least in principle – on his recently expressed view regarding the transparent judicial role of the Court.

Obviously, that judicial role – on its face – is to decide cases, and to decide them effectively.

Optimally, effective exercise of that judicial role presumes the following objectives:
1) to form as great a consensus of opinion as possible among the Justices of the Court on cases brought before that Court; and,
2) to issue opinions on decisions of the Supreme Court which clearly and logically set out the applicable law for all citizens and lower courts to follow.

So far so good.

The Governmental Role of the US Supreme Court

However, the founders of the American system of government also foresaw an additional, perhaps even more important role for the judiciary beyond the mere duty of “deciding cases”, and this applies particularly to the nation’s highest court. The founders envisioned that the judicial branch of government serve as an equally strong member of the triumvirate of government formed by the legislative, executive and judicial branches. In this less transparent governmental role, the judiciary must act as a “check and a balance” on the other two branches of government.

That role makes the US Supreme Court an active player in the government process and not merely a passive umpire in a game played by others.

The Constitutional Role of the US Supreme Court

The judicial and governmental roles of the United States Supreme Court are inextricably joined in the Court’s power and responsibility to interpret and apply the Constitution of the United States to specific cases. In other words, even when the US Supreme Court simply “decides” or “umpires” a case, as Roberts might describe it, it actually does far more than that.

As written at The National Legal Center for the Public Interest:

Even though it only has 4,400 words, the United States Constitution is the most influential legal document ever created. This document – which was written by our Founding Fathers over 200 years ago – still plays a key role in our daily lives.

One of the chief responsibilities of the U.S. Supreme Court is to interpret this great document, and make sure that the vision of our Founders is carried through to this day. Although some may argue about the proper interpretation, no one can question the wisdom of its underlying principles.

To view the U. S. Constitution, click here:


It is perhaps time for Chief Justice Roberts to stop comparing his job to that of a baseball umpire. It is an analogy which does not hold. When a baseball umpire is in doubt, he can pull the rule book out of his pocket – BUT – the baseball umpire does not MAKE the rules he applies, though he is authorized to rule in the absence of a fitting rule. In the main, however, others write those rules for him and change them, as necessary, from season to season. The baseball umpire applies the rules to a given game situation, nothing more.

In the case of the Supreme Court, the general rule book is the Constitution but there the similarity with baseball ends. The US Supreme Court by its decisions itself writes the detailed interpretative rules to which other umpires (other courts) and players and coaches of the game (the citizens) are then mandatorily bound. That is a substantial difference in responsibilities.

MP3 Shows that America is being Trounced by Europe on the Corporate Battlefield

The MP3 Codec and its Licensing

MP3 is a codec, a standard for compression and decompression of music, developed in Germany by the Fraunhofer Institute.

The word CODEC is formed by the first letters of the words COmpression and DEComprression. MP3 is the short form for MPEG-1 Audio Layer 3. Wilson Yuen writes:

MP3 is currently the most powerful algorithm in a series of audio encoding standards developed under the sponsorship of the Motion Picture Experts Group (MPEG) and formalized by the International Organization for Standardization (ISO).

The right to license the MP3 codec is owned by the French company Thomson (mp3licensing).

The MP3 Codec is a Standard for Compressing and Decompressing Music Files

MP3 is similar to the much older JPEG standard for graphics, which makes files smaller by removing color information while attempting to retain as much of the original picture intact as possible. MP3 is a two-pass compression system, utilizing Huffman encoding in the second pass, and in the first pass primarily removing music information to make music files smaller than e.g. the original CD versions. The fact that MP3 files are up to 12 times smaller than the original uncompressed files – with minimal loss of music quality – has made the MP3 codec very popular.

MP3 and Similar Standards should not be Subject to Patentability

MP3 is in our opinion one prime example of the kind of “alleged” invention that should never have been granted a patent in the first place (see the MP3 patent discussion here), nor should the alleged technology behind such an invention in any manner be eligible for patent protection. MP3 is a standard – there could easily be others. It is nothing more than a particular method of compressing and decompressing information, applying generally known principles and methods.

The Methods of Compression and Decompression are Limited and Known

There are only a limited number of basic ways in which information can be compressed and decompressed – principally by reducing the information indexed and by better notation of repetition and redundancies. Why should a codec like that be subject to patenting?

Take this sentence as an example of a unit to be compressed:
MP3 is a compression and decompression codec to compress and decompress music files.

We can compress that sentence by just leaving out “compression and decompression”, resulting in MP3 is a codec to compress and decompress files, without thus losing much meaning and we can reduce it further by better notation of the word “compress” which still appears twice in the remaining sentence, so that we could then write MP3 is a codec to c. and dec. files. Upon decompression, “c.” would again be replaced by the word “compress“.

To call a codec an invention stretches the definition of “invention” past logical limits because doing so prohibits others from utilizing similar AND obvious compression methods – which are limited in number by mathematics.

All digital information consists of 1’s and 0’s, so that any method that can more compactly describe those 1’s and 0’s is potentially useful for a codec. For example, if we have a picture of 10 lines, each 100 pixels long, and that picture is white for the first 9 lines but contains a black straight line the entire length of the 10th line, then we do not need to make a separate notation for each of these 1000 pixels. Rather, we can treat the first 900 pixels as ALL white (all zeroes) and the last 100 pixels as ALL black (all ones), so that our notation can be short “900 0’s in 10 lines and 100 1’s in 1 line”. If we set our default value to “0” then “100 1’s in line 10” is notation enough. The picture is thus compressed. The principle in music is the same. But this recognition is not “an invention”.

Although the actual application of any given compression and decompression standard such as JPEG or MP3 is of course more complicated when dealing with large masses of photo or music information, that is fundamentally all there is to it. There is nothing magical about it that needs the protection of patents. MP3 removes musical information that is hard for humans to hear but which microphones pick up. When such information is removed, music files are much smaller.

General Principles of Shorthand were known prior to Christ

General principles of information compression and notation were known long before JPEGs or MP3s came into existence. Shorthand has long been used in writing in law by court reporters (NCRA) and Greek and Roman tachygraphy was known already before the days of Christ. Hebrew language was generally written without vowels, presumably as a form of shorthand. Compression is simply a form of shorthand.

The Machine Rendition of Voice and Music began with Bell and Edison

Limitations of writing systems for recording purposes led man to develop machines for reproducing the human voice and music, which culminated in Alexander Graham Bell‘s invention of the telephone and Thomas Alva Edison‘s invention of the phonograph. The patents awarded to Bell and Edison created empires which still thrive today.

AT&T’s Patent-Based Monopoly remains Intact

One of the things that the political, corporate and legal establishment in the United States does not appear to appreciate is that patent monopolies, once granted, far outlive the actual duration of patents, and give the holders of those patents – on a silver platter – industrial empires which last centuries. The best example of that in Europe is the post monopoly of Thurn & Taxis, whose family, hundreds of years later, is still one of the wealthiest families in Europe.

Alexander Graham Bell’s patents were challenged something like 600 times during his lifetime, but his patent-based monopoly could not be shaken and AT&T (later known as “Ma Bell”) went on to control nearly the entire US telephone market, creating one of the most powerful monopolies of the modern business age.

The legal community in the United States appears to be overwhelmed by Ma Bell. The “trustbusters”, not understanding that patents were at the root of Ma Bell’s power, decided to break up America’s biggest and most powerful corporation in 1974. The result has been the creation of a multi-headed hydra of “Baby Bells” which resulted from the break-up of AT&T who now threaten to join together into one great corporation with even greater powers than before. Ma Bell is still quite alive and kicking – patent monopolies, once granted, have a long life.

“Ma Bell Still Has You by the Bells”

One used to say that “Ma Bell Has You by the Calls” (non-native speakers who do not understand that joke should be aware of the American idiom “have someone by the balls“).

Part of the Ma Bell legacy is found in the now spun-off Lucent Bell Labs of what is the French company, Alcatel-Lucent (Bell Labs was formerly AT&T Bell Laboratories viz. Bell Telephone Laboratories):

At its peak, Bell Labs was the premier facility of its type, developing a wide range of revolutionary technologies, including radio astronomy, the transistor, the laser, information theory, the UNIX operating system, and the C programming language. There have been 6 Nobel Prizes awarded for work done at Bell Labs.

This 6-Nobel-Prize-producing former American laboratory is now owned by the French.

The Alcatel-Lucent Patents in the Patent Suit Against Microsoft

An American jury has just awarded the French company Alcatel-Lucent $1.5 billion for the patents below, to be paid by Microsoft (but of course, the bill is actually paid ultimately by the American consumer), and Alcatel-Lucent have numerous patent suits more in the pipeline against Microsoft.

Will French ultimately own Microsoft?

US Patent 5,341,457 – Abstract
Perceptual coding of audio signals
A technique for the masking of quantizing noise in the coding of audio signals is adapted to include geometric interpolation between the thresholds for a tone masking noise and for noise masking a tone, in order to reduce use of bit-rate capability where it is not necessary for transparent or high quality. The technique is usable with the types of channel coding known as “noiseless” or Huffman coding and with variable radix packing. The stereophonic embodiment eliminates redundancies in the sum and difference signals, so that the stereo coding uses significantly less than twice the bit rate of the comparable monaural signal. The technique can be used both in transmission of signals and in recording for reproduction, particularly recording and reproduction of music. Compatibility with the ISDN transmission rates known as 1 B, 2 B and 3 B rates has been achieved.

One of the inventors of the above patent, James David Johnston, retired from AT&T and became an audio architect for Microsoft Corporation. See Perceptual Coding of Audio Signals – A Tutorial. Is that the root of the problem? Johnston is also the inventor of the following patent.

US Patent RE39080
Rate loop processor for perceptual encoder/decoder
This is a reissue application of U.S. Pat. No. 5,627,938 filed Sep. 22, 1994 as application Ser. No. 08/310,898 which is a continuation of application Ser. No. 07/844,811, filed on Mar. 2, 1992, now abandoned, which is a continuation-in-part of application Ser. No. 07/844,967 filed Feb. 28, 1992, now abandoned, which is a continuation of Ser. No. 07/292,598 filed Dec. 30, 1988 now abandoned.

A method and apparatus for quantizing audio signals is disclosed which advantageously produces a quantized audio signal which can be encoded within an acceptable range. Advantageously, the quantizer uses a scale factor which is interpolated between a threshold based on the calculated threshold of hearing at a given frequency and the absolute threshold of hearing at the same frequency.

Those are the two patents for which a jury just awarded Alcatel-Lucent $1.5 billion. Not bad considering that Alcatel paid only about $11.5 billion for the entire company Lucent – and that was merely a stock deal, no cash at all. If Alcatel gets similar judgments on its other patent suits, its purchase will have been a STEAL, and we do emphasize the world steal. Lots of money flowing out of America into Parisian coffers.

At the same time, Alcatel-Lucent plans to cut 12500 jobs worldwide (12% in France) – which means more unemployed on the streets and more money for execs such as Patricia J. Russo, whose entire career is littered with thousands of people losing their jobs under her leadership.

European Commission Fines Microsoft

The European Commission found Microsoft to have engaged in anti-trust activities in Europe and fined it $357 million, threatening to continue to fine it several million dollars a day until it opens up its proprietary software to European companies. The European Commissioner for Competition, Neelie Kroes, who imposed the fines, was at the time on the board of directors of
…. Lucent.

France and Germany Seek to Force Apple to Open its iPod DRM

And how about Apple, which is being forced by France and Germany to open its iPod DRM?
Will Apple be another French company soon?

The European Strategy Against Corporate America

On the one hand, European companies are using the Alice in Wonderland US patent laws to relieve American corporations of billions of dollars of cash. On the other hand, European companies and the European Union are forcing American corporations to open their proprietary software to their European competitors and to dismantle their product protection in Europe for the benefit of European products.

Can it really be that corporate America does not understand what is going on?