Solvency Deficit: A court adoption of a policy-making role destroys judicial independence, weakens the letter of the law, and makes the court a political institution like Congress.

“The policy that I believe a court has no power to make is that which asks established law to give way in the face of a current social goal deemed more "important" -based on an argument that a felt necessity should trump existing principles because they are old and threadbare, or because the legislature never imagined such a new and different set of facts. Paraphrasing only slightly the Supreme Court's own admonition in Parker v. Flook, I said, "[i]t is our duty to construe the patent statutes as they now read, in light of our prior precedents, and we must proceed cautiously when asked either to extend or contract patent rights for reasons unforeseen by Congress." Given that theme, on which I elaborated in greater detail and with citations to authorities far more influential than I, I assumed I would never again be asked to address this Conference-one whose expressed purpose is to discuss ways in which some believe courts could, and indeed should, engage in the very policymaking I had eschewed. So, you can imagine my surprise when my good friend, Professor Peter Mennell, asked me to open this year's version of this Conference. My first thought was that, since the University of California Berkeley School of Law was not the co-sponsor of the 2011 Conference, perhaps Professor Mennell did not know I had put somewhat of a damper on that earlier Conference with an out-ofthe-box pronouncement that the answer to the question the entire Conference seemed designed to probe was a pretty simple one, and not the one I guessed most in the room wanted to hear. So, as not to embarrass Professor Mennell, I assumed I should decline his invitation and let the Conference get off to a more optimistic start. But, I realized, however, that the Peter Mennell I knew was too fastidious not to have been aware of my earlier appearance and the content of my commentary, which meant that perhaps he believed I might have something new or different to add to the dialogue-perhaps even that my experience on the appellate bench had altered or softened my views. So I agreed to come, hoping not to disappoint. In reflecting on whether my years on the appellate bench have impacted my view of the judiciary's role with respect to the shaping of substantive patent law and policy, I realize that they have. They have not softened those views; however, my views have become more entrenched, as some of my opinions including dissents-may reflect. I have become especially concerned as I watch the number of times lawyers and parties urge both our court and district courts to either openly ignore what Congress has said, anticipate what Congress would have said if it had been able itself to anticipate changes in technology or the litigious nature of patent litigants, or reinterpret statutes in ways that appear more fair or more efficient than Congress's own words reflect. While trial and appellate judges certainly may participate in open dialogue about substantive changes needed in the law, and may in their decisions urge Congress or the Supreme Court to consider changes, we may not effectuate those desires on our own. When parties request that judges assume a substantive policy-making role in the face of otherwise clear decisional mandates, and judges accede to those requests, we weaken the judiciary itself. By not adhering to the structural limitations on the branches of government established by the Framers, we invite the same types of incursions on our own authority. However well-intentioned and however strong the policy urges, decisions that fail to voice that which Congress has said is the law risk weakening our own independence. I assume I do not need to remind anyone in this room that an independent judiciary is the very cornerstone of the freedoms guaranteed by our Constitution. As the Supreme Court said in Evans v. Gore, "the articles which limit the powers of the legislative and executive branches of the government, and those which provide safeguards for the protection of the citizen in his person and property, would be of little value without a judiciary to uphold and maintain them .. . ."9 As Alexander Hamilton said, if the independence of the judiciary is destroyed, "the constitution is gone; it is a dead letter; it is a vapor which the breath of faction in a moment may dissipate ... "10 In an age where court-bashing is common, we ought not to contribute to our own destruction. If we are unable to respect institutional boundaries ourselves, why should we expect Congress or the Executive branch to do the same?