Does Justice Thomas Hate Invention or Just the Hubris of Inventors?

by Dennis Crouch

The Supreme Court recently decided Moore v. United States, — U.S. — (June 20, 2024), a case focusing on the constitutionality of the Mandatory Repatriation Tax (MRT). While the majority opinion, authored by Justice Kavanaugh, upheld the MRT, Justice Thomas published a strong dissent relying upon an invention metaphor in a decidedly negative light, something that he has done in several other recent opinions. For Thomas, judicial invention is a synonym to judicial activism and antithetical to his approach that looks primarily to historic preservation, especially when interpreting the U.S. Constitution.

In Moore, the majority held that the MRT, which attributes the realized and undistributed income of an American-controlled foreign corporation to the entity’s American shareholders and then taxes those shareholders, “falls squarely within Congress’s constitutional authority to tax.” The Court reached this holding by relying on its “longstanding precedents” that allow Congress to attribute the undistributed income of an entity to the entity’s shareholders or partners for tax purposes.

Justice Thomas, joined by Justice Gorsuch, dissented. He argued that the Sixteenth Amendment requires realization for income to be taxed without apportionment.  His main complaint against the majority opinion is that it “invent[ed]” a new attribution doctrine to reach its conclusion.

Justice Thomas’ negative invocation of “invention” in Moore is part of a broader trend in his recent opinions. Just a week before Moore, in FDA v. Alliance for Hippocratic Medicine, 602 U.S. — (June 13, 2024), Justice Thomas refused to “invent a new doctrine of doctor standing,” concluding that “there would be no principled way to cabin such a sweeping doctrinal change to doctors or other healthcare providers.”  Similarly, in a recent concurring opinion, Justice Thomas argued that “Federal courts have the power to grant only the equitable relief ‘traditionally accorded by courts of equity,’ not the flexible power to invent whatever new remedies may seem useful at the time.” Alexander v. S.C. State Conf. of the NAACP, 144 S. Ct. 1221 (2024) (Thomas, J., concurring).  And in his dissent in US v. Rahimi, 602 U.S. — (June 21, 2024), Justice Thomas complained that “At argument, the Government invented yet another position.”

Justice Thomas is not alone in his negative view of judicial invention. In a recent dissent, Justice Gorsuch lamented that “Despite [a] settled rule, the Court today doubles down on a new tort of its own recent invention.” Chiaverini v. City of Napoleon, Ohio, 602 U.S. — (June 20, 2024) (Gorsuch, J., dissenting).

This antipathy to judicial invention truthfully in line with the stated approach of all judges today. Claiming judicial restraint, “calling balls and strikes,” avoiding judicial activism. In Moore, for instance, the majority opinion also tied its holding to history.  Although what caught my attention in the case is that the majority opinion does also reference invention — applauding the taxpayers’ attorneys for being inventive, even if ultimately unpersuasive on a particular point. The Court wrote, “Moores’ effort to thread that needle, although inventive, is unavailing.”  The concept of invention also appeared in Justice Barrett’s concurring opinion in Moore, but in a different context. She wrote, “A patent is an inventor’s property, and royalties are the income she receives from licensing it. A capital fund is a banker’s property, and interest is the income she receives from lending it.” Here, Justice Barrett was distinguishing between a “seed” (property) and its “fruit” (income), not commenting on judicial invention.

Showing that it is not only the conservative Justices, in a recent majority opinion, Justice Jackson also used the term “invention” pejoratively, arguing that “the dissent invents new arguments to arrive at its favored outcome.” Office of U.S. Tr. v. John Q. Hammons Fall 2006, LLC, 602 U.S. — (U.S. June 14, 2024). Justice Jackson noted that the dissent’s purported inventiveness was two-fold problematic: (1) it went beyond the arguments of the parties, and (2) it went beyond controlling precedent.

I have been delving into mythology recent as part of an academic project, and Justice Thomas’ approach calls to mind the many ancient myths that warn against hubris that often leads to folly. To escape from the labyrinth, the great inventor Daedalus created wings for himself and his son Icarus using feathers and wax. Daedalus warned Icarus not to fly too close to the sun, as the heat would melt the wax. But, Icarus could not listen: The wax melted and Icarus plummeted into the sea and drowned. Thomas views “judicial invention” as a dangerous flight too close to the sun – risking the integrity of the legal system that has stood for so many years.  But, this analysis is a bit too quick because the myth does not condemn invention itself, but rather reckless and unrestrained use of it. Daedalus, after all, successfully used his invention to escape, demonstrating that innovation, when applied with restraint, can be beneficial. In the context of jurisprudence, this suggests to me that there might be a middle ground for judicial invention – one that provides due respect to established precedents and historic traditions while allowing for thoughtful adaptation to new societal challenges. Just as Daedalus found the right balance in his flight, perhaps there’s a path for judicial reasoning that innovates responsibly.

You might think that Justice Thomas believes that invention is best left to those seeking patents, not those wearing judicial robes. But, Justice Thomas is also no friend to patents or patent owners.  Rather, he is author of key opinions that  have greatly weakened patent rights over the past two decades, including eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388 (2006); Alice Corp. Pty. Ltd. v. CLS Bank Intern., 573 U.S. 208 (2014); and Oil States Energy Services, LLC v. Greene’s Energy Group, LLC, 584 U.S. 325 (2018).   Hate is a strong word, but perhaps the answer is that Justice Thomas does not favor invention.

39 thoughts on “Does Justice Thomas Hate Invention or Just the Hubris of Inventors?

    1. 14.1

      Especially after U.S. Supreme Court’s ruling inLoper Bright Enterprises v. Raimondo ended the 40-year-old precedent of “Chevron deference.”
      This basically allows courts to “invent” if not laws themselves, at least how they should be interpreted without deference to the agencies who administer them.

      1. 14.1.1

        Contrary to the “Oh N0es” laments, this is not an invitation for the Judicial Branch to write the law.

        Instead, it is a dictate that the Executive Branch does not have the right to write the law.

        Perhaps we can all agree that the proper branch of the Government TO write the law is the Legislative Branch.

  1. 13

    Oil States was certainly a . . . disappointment, to be kind. His opinion in eBay could have been much more forcefully written, in particular where the Court upholds Continental Paper Bag (the other cert question).

    When it comes to IP and property rights , Thomas is no ‘conservative’ at least so far as forcing the Government make right angle turns in keeping the departments separate. The entire series of cases surrounding PTAB have been an exercise in ‘saving’ the statutory scheme. Now a Robert’s court doctrine since the Obamacare decision. Indeed, Oil States and the appointments challenge to PTAB are at complete odds with one another. And yet, we have both. At the very least, he is in the patent law is the red headed step child camp, i.e., in the Thurgood Marshall, 2nd circuit camp.

  2. 12

    the timing of your criticism of Justice Thomas is conspicuous. Are you piling on? have an ax to grind?

    1. 12.1

      “Piling on” to this corrupt, imbecilic c r e e p is an American tradition, Ron. Between Clarence and Sammy and their pitiful wives, we’ve got four amazingly loathsome traitors. They also happen to be hacks and their interns are mentally challenged pond cleaners whose cite and fact checking skills would fit neatly into a flea’s thimble.

    2. 12.2

      “The legal action points out that a central pillar of the new [Louisiana] law – the claim that there is a long tradition linking the Ten Commandments to public education in the US – is based on a fabrication. HB71 quotes James Madison, the fourth president, as saying: “We have staked the whole future of our new nation … upon the capacity of each of ourselves to govern ourselves according to the moral principles of the 10 Commandments.” That quote is fictitious; it is to be found in none of Madison’s writings or speeches. It appears to have been drawn from a conspiracy theory popularized by the late rightwing talk show host Rush Limbaugh.”

      Yes, there is a need for constant axe-grinding.

      1. 12.2.1

        How many of those that built this nation were atheists?

        Certainly, false attributions can and should be pointed out, but the lady doth protest too much, methinks.

        In other words, he may have not said it explicitly does not mean that it does not apply.

        You likely do not know (let alone care) just how much Canon law forms US law.

        On the opposite side of the spectrum, your Sprint Left Neo-Marxism religion has very little formation to US law.

        And yes, this is yet another source of cognitive dissonance for you.


          “those that built this nation”



          Few people are brave enough to admit their disingenuity. Thank you for your bravery!


            As usual, NSII feels obliged to jump in on the wrong side of the fence.


            For people who detest the foundations of this country, there is nothing stopping you from leaving.


              “the foundations of this country”

              Genocide, slavery, violent revolt and puritans. What’s not to like?


                Nothing is holding you back from leaving (or focusing on the documents considered to be some of the finest governmental foundations to have ever been written).

                And please, let me know your better foundational system and let’s take a look at those types of ills that you want to claim are the actual fruits of a system that enjoy.


                A refresher on the US foundational documents, here the Declaration of Independence:

                link to

  3. 11

    I know I will get a lot of heat here, but according to frame of mind of the drafters of the constitution, is Justice Thomas a full person? and if we stick only to historical precedence of the founding fathers, is he entitled to be seating at the bench, never mind receiving what – under all other circumstances – be called bribes?

    Don’t get me wrong – I am not in any way anti-black or racist, but following his logic (with which I do not agree) , these are my conclusions.

    1. 11.1

      The difference here is that the Constitution was amended post-Civil War to provide full citizenship rights and legal personhood to black Americans. For issues involving constitutional amendments beyond the bill of rights, Thomas looks to history at that time.

      1. 11.1.1

        Correct. But trying to tell modern day lawlyers that they need to *gasp* shock horror AMEND THE LAW is like pulling teeth. They literally ha te amending the law, and going through the process of amending it, even though its done constantly. Real issue is, lawmakers (almost all of them lawyers) don’t want responsibility or electoral consequences.


          The real issue is that amending our Constitution to address genuine societal issues is nearly impossible given (1) the disproportionate representation given to rural states in the Senate; and (2) the fact that 40% of people in this country, particularly those in rural states, are backward-facing rubes and/or deplorable r a c i s t misogynist knobs who are still fighting the Civil War.


            “I love democracy as long as I get the results I like.”


              Neither the Senate nor the Electoral College system of electing Presidents (who together select the term-unlimited members of the Supreme Court) are particularly “democratic”, as most people with a decent high school education could tell you. Pretty much the point of my comment but of course it whizzed over your thick head.


                I really doubt that the point of your comment was the difference between pure democracy and a Constitutional Republic.

                You have shown zero appreciation of the actual government that we have.



              That is the typical mantra of the Sprint Left (and I have provided detailed expositions of this from Dr. Lyndsay that is based on the very ‘scriptures’ of the Sprint Left).


          In fairness, I’m not sure how you amend “judicially-created exceptions” to a law.

          (I’ll also note that Justice Thomas greatly expanded those judicially-created, err, “inventions”)

  4. 10

    PS, it’s childish to imagine that each branch of government could ever be wholly confined to its function. We actually have nine branches of government; all three must do some lawmaking, some law interpretation, and some law execution.

    As always, the best balance for the situation is the thing to pursue.

    1. 10.1

      Aaaaarg then a child be I! However, I do think the DMV should share records with the district attorney in everyday traffic cases. A bit ridiculous to have every person acting as a document mule over to the DA to see if they will dismiss charges on administrative things. In the age of computers all that information should be available to the relevant decision maker on a beep boop machine.

    2. 10.2

      It is far less “wholly confined,” and much more “effectively checks and balances.”

      Now, if you were to state that the current employment of checks and balances is woefully deficient, we would be in agreement.

      But your phrasing instead comes across as a type of ‘excuse’ to meekly accept a woeful condition, and cannot be accepted.

  5. 9

    Warnings against gaining knowledge are just about the oldest of human drives.

    We don’t want to offend the gods (or the local medicine man racket). The bible pretty much opens with that imperative.

    But I think its a stretch to treat two definitions of “invention” as having the same meaning.

    When they say “invent” in the context of judging, they mean to draw arbitrary meaning from their own beliefs. They don’t mean acts of experimenting toward a goal of solving a particular problem.

    I’m sure Thomas would be all for a new & improved leveling system for his RV.

    1. 9.1

      “I’m sure Thomas would be all for a new & improved leveling system for his RV.”

      Him settle for a mere leveling system? Nah — how ’bout an entirely new $100k+ RV.

      (And we all know exactly who’d pay for it.)

    2. 9.2

      You misconstrue the opening lesson of the Bible.

      Altogether rather unsurprising, given the religion of Neo-Marxism that your statement sounds in.

  6. 8

    Is it April 1? All these judges are using “invent” according to its commonly understood meaning: To create something that didn’t previously exist. Some inventions are good; some are bad. And there’s no indication in any of your quotes that any judge believes invention is either always good or always bad. If Justice Thomas wrote, “The founding fathers invented a new form of government,” would you take that to mean he disapproves of the Constitution?

  7. 7

    For SCOTUS judges — for all of American history — the end always justifies the means:

    Need to claim to rely on history to support an argument? Check.

    Need to claim to rely on a statute to support an argument? Check.

    Need to claim to rely on the constitution to support an argument? Check.

    Need to just make something up to support an argument? Checkmate.

  8. 6

    IDK. This kinda sounds like a “thinly veiled dog-whistle” style theory.

  9. 5

    I can’t tell whether this entire post is tongue in cheek. Obviously it’s not the role of courts in a common law system to invent new law; that is the job of the legislature. That division of responsibilities has nothing to do with adjudicating the infringement or validity of patents of invention. The whole conversation is deeply silly. (And your comments section is a cesspool, and unbecoming of officers of the court discussing a sitting Supreme Court justice.)

    1. 5.1

      “unbecoming of officers of the court discussing a sitting Supreme Court justice”


      Bow down before the corrupt stains who were appointed to do the bidding of a diseased party of reactionary dominionists and gun fondlers!

  10. 4

    You should stay out of politics.

    1. 4.1


  11. 3

    The Vincent Gambino of the Supreme Court, Justice Thomas likes or dislikes whatever his gift-giving sugar daddy wants. What was up with nearly seven years of silence at Oral Arguments? Was it a Vow of Silence because he was becoming a monk or did he fear his ignorance would be exposed?

  12. 1

    Clarence Thomas is a corrupt lying hypocrite, “originalism” is a farce, and both he and his traitor dominionist wife should be rolled off a cliff in a wooden barrel.

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