The US Supreme Court began its first day of the fall term Monday with three oral arguments: two criminal cases concerning constitutional questions as well as a case concerning legal fees and the US Patent and Trademark Office.

The court began with Kahler v. Kansas, in which the court will determine whether the Fourteenth Amendment’s incorporation of the Eighth Amendment prevents states from eliminating the insanity defense. Kahler attempted to present an insanity defense to his killing of four of his family members. He petitioned the case to the Supreme Court based on Kansas having eliminated the necessity defense based on its adoption of new rules for mental illness.

Counsel for Kahler argued on Monday that because it is one of just a handful of jurisdictions that does not have an affirmative insanity defense, “Kansas uproots the deeply rooted by eliminating any mechanism to assess whether a defendant’s capacity for moral judgment was intact or was irretrievably compromised by mental illness.” Kahler argued this violates due process. Kansas argued that the administration of the defense and its parameters is reserved to the states.

In Ramos v. Lousiana, the court will determine whether the Fourteenth Amendment fully incorporates the Sixth Amendment right to a unanimous jury verdict.

Ramos was tried and convicted of second-degree murder in Louisiana of a woman with whom he was involved. Under the Louisiana Constitution, in criminal trials prior to January 1, 2019, 10 jurors out of 12 were sufficient for a unanimous conviction.

“As the Court has said many times over many decades, the Sixth Amendment requires a unanimous verdict to convict,” counsel for Ramos argued, citing tradition dating to common law. “In a nutshell, we are not prepared to take away someone’s liberty unless a cross-section of the community uniformly agrees that criminal punishment is appropriate.”

The court also heard US Patent and Trademark Office v. Nantkwest, in which the US Patent and Trademark Office (PTO) is seeking a determination that biotech company Nantkwest was responsible for PTO attorney’s fees when Nantkwest sought an appeal for its patent application.

A provision of the Patent Act, 35 USC § 145, allows an applicant whose patent has been rejected to seek either a review in the US Court of Appeals for the Federal Circuit under the same facts and record the PTO used, or they can take it to district court. In district court, the applicant will have a new court review of their patent, provided they pay “all the expenses of the proceedings” incurred by the PTO in defending its decision, regardless of the outcome. This often includes sums it spent on travel and printing and, more recently, expert witnesses, but the PTO argued that this includes attorneys’ fees.

The Federal Circuit ruled for Nantkwest, holding, as a general rule, that courts cannot shift attorneys’ fees from one party to another “absent a specific and explicit directive from Congress,” and that the phrasing “all the expenses of the proceedings” does not include attorneys’ fees.

US Deputy Solicitor General Malcolm Stewart spoke on behalf of the PTO, arguing the term “expenses” is clear to include all expenses that may arise upon defending its decision to deny a patent, including the cost of the attorneys’ work. Counsel for Nantkwest argued there are “3,274 federal statutory provisions that use the word ‘expenses’ without any reference to attorneys’ fees or counsel fees.”