Author ORCID Identifier

Tonja Jacobi 0000-0002-5200-5765

Matthew Sag 0000-0003-2381-1028

Document Type

Article

Publication Date

2026

Keywords

Intellectual property, Supreme Court, Ideology, Depoliticization, Patent cases

Abstract

The Supreme Court is dramatically more politically polarized in the Roberts Court era, and the justices have been criticized for highly ideological and partisan decision-making. Yet, we show that there is one area of law that is becoming less ideologically divided and predictable: intellectual property (IP). In an earlier study, we showed that, prior to the Roberts Court, IP case outcomes were predictable based on judicial ideology, with more conservative justices embracing IP rights, as they do for real property. In the last two decades, IP has become more influential on the economy and society, through the increasing dominance of tech companies and social media. However, we show that, tested in a variety of ways, Supreme Court IP jurisprudence is no longer ideologically predictable. What explains this paradox? We test multiple possible causal theories posited by various scholars and show that all of them are lacking. The best explanation, consistent with the data, is that the apparent depoliticization of IP at the Supreme Court is a product of the Court’s interaction with the Federal Circuit: the court of appeals with exclusive jurisdiction over patent cases. However, this account of institutional rivalry does not explain why areas of IP beyond patent law are also less ideologically determined under the Roberts Court. Whatever the cause, at a time when controversies surround the Supreme Court justices and political control of the Court is a key electoral issue, the finding that one area of doctrine—a politically and economically vital part of the law—has become depoliticized is a striking and important result.

First Page

135

Publication Title

Berkeley Technology Law Journal

Comments

© 2026 Tonja Jacobi and Matthew Sag.

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