the silent 5

It is the middle of the night. Sleep is awol, scared off by this question that won't stop pestering me: Is there a principle here? Is there a way to read these opinions as consistent with a principle?

Some background. There is a single, central question that has divided this Court over the past decade: Is it the Court's role to review and constrain Congress in the exercise of its enumerated power. Four justices have been generally strongly in favor of deference. Five justices have insisted on limits. These five have insisted that an interpretation of Congress's enumerated powers that erases any effective limit to that enumerated power is wrong. Four justices have consistently rejected that argument. Not that these four don't vote to strike down laws of Congress. But rather these four don't strike laws of Congress on the ground of this "principle of enumeration."

These four justices were consistent with their principles in this case. Indeed, three of them wrote opinions in this case. Justice Ginsburg wrote the majority. She has never been a fan of the enumeration principle. She didn't even mention it in her opinion. Justices Stevens and Breyer wrote dissents. They each had reasons why they believed Congress had gone too far. But neither invoked this principle of enumeration.

Stupidly, as I see now, I thought the hardest group on this Court to convince of our view would be these four justices. Deference is their ordinary mode. Deference was the strongest argument against us. So I was very happy to read the extremely strong opinions by two of these four, each for different reasons showing just why Congress had gone too far.

But again, missing from both opinions was the argument that I believed would win this case: That if there is a principled reason why Congress's power is limited in the context of the commerce clause (and elsewhere), then that reason applies even more strongly in the context of the copyright clause. As we said over and over again, if you agree with the line of cases that Chief Justice Rehnquist is most famous for, then you must agree that the Copyright Clause restricts retroactive extensions. As the Chief Justice taught in the case of Lopez, if an interpretation of Congress's power yields the conclusion that Congress's power is unlimited, it is an improper interpretation. Yet that is precisely what the government conceded its interpretation did.

Thus, again, it was no surprise this argument was absent from Justices Stevens and Breyer's opinion. Nor was it a surprise that it was absent from Justice Ginsburg's opinion. She too has consistently argued that Congress's discretion is broad. Her opinion is an excellent opinion for one who believes that the Supreme Court should defer to Congress's judgments except where they are wholly irrational. "Irrational" in this context means that there is no possible set of facts that would supply the law with a reason. And as we have said from the start, we do not believe the Bono Act fails that test.

The puzzle in the case was the silent 5 -- the 5 justices who have consistently argued that Congress's power is limited; that enumerated powers must be read in a way that makes sense of those limits. It was my judgment that those justices would apply the same principle to the Copyright Clause, or at least explain why they did not. And ever since the argument on October 9, I have struggled to imagine how they could ever write an opinion that would distinguish commerce from copyright.

It had never even crossed my mind that these 5 justices would simply duck the issue. By assigning the opinion to a justice who has consistently rejected that principle (Justice Ginsburg), the Chief Justice avoided any need to show why his principle of enumeration applied to some clauses of Article I, sec. 8, but not others. And as there was no reason for the dissent to mention the argument, the case gets decided without the central argument that we had advanced even being discussed. It was Hamlet without the Prince.

I spent four years of my life on this case. As I have said, I will always believe that I should have been able to get at least three of the five to see the point. Ans if there is consolation, it is that this case, and the many people who fought this case, has raised public awareness about these issues, and that awareness may well do good.

But as I read these opinions, I realize the hardest part for me is elsewhere. I have spent more than a decade of my life teaching constitutional law—and teaching it in a particularly unfashionable way. As any of my students will attest, my aim is always to say that we should try to understand what the court does in a consistently principled way. We should learn to read what the court does, not as the actions of politicians, but as people who are applying the law as principle, in as principled a manner as they can. There are exceptions, no doubt. And especially in times of crisis, one must expect mistakes. But as OJ's trial is not a measure of the jury system, Bush v. Gore is not a measure of the Supreme Court. It is the ordinary case one needs to explain. And explain it as a matter of principle.

I'm not sure how to do that here. I don't see what the argument is that would show why it is the Court's role to police Congress's power to protect states, but not to protect the public domain. I don't see the argument, and none of the five made it. Nor have any of the advocates on the other side identified what that principle is.

One friend offered a reason in an email of condolence. Those 5, he said, save their activism for issues they think important. They apply their principle to causes they think important. Protecting states is a cause they think important. Protecting the public domain is not.

By what right? By what g.d. right? These five justices have all the right in the world to have their own principled way of interpreting the constitution. Long before this case, I had written many many pages trying to explain the principle I thought inherent in the decisions of these five justices. I have spent many hours insisting on the same to ever-skeptical students. But by what right do these 5 get to pick and choose the parts of the constitution to which their principles will apply?

This sounds so amazingly naive, I know. But I have spent my career staring down the charge of naive, insisting on something more. Think the poster on the X-Files -- "I want to believe" -- but with the Supreme Court, not UFOs, in the background. Yet here I am, more than a decade into my job, just where most of my professors insisted I should have been more than a decade ago.

Harvard Professor Roberto Unger ends one of his first books by describing us, the professors, as "priests who have lost their faith but kept their jobs." I remember loathing those "priests" as a student. They have the right to lose their faith, I thought; they have no right to keep their job.