The single most important strategic decision in this case, and a decision for which I am solely responsible, was the decision to focus upon just this division. When we brought this case, people were rightly skeptical that the court would embrace an argument grounded in the First Amendment alone. Nor, given the Court’s general and appropriate deference to Congress, was it likely that a straight attack on the “rationality” of the statute would succeed. So our aim was to say, as Judge Sentelle argued in his dissent in the Court of Appeals: Under the enumeration principle announced in Lopez, and Morrison, retroactive extensions of existing terms violates “limited times.” If Congress has the power to extend a limited term without limit, then that is not a limited term.The primary target of our appeal was therefore the five justices who had endorsed this principle ? Rehnquist, O’Connor, Scalia, Kennedy, Thomas. And in addition to these five, we had hoped that the general extremism of the extension (and pattern of the extensions) would attract the votes of some of the remaining four. But the least likely justice to be persuaded by our case was Justice Ginsburg, and second, Justice Souter.
So let’s start with the charitable point first: However much we may disagree with the result, as I said in my post after the argument in the case, there is something wonderful about losing because the Court believes its power is limited. As I said then, it is a virtue of a court system that the court constantly checks its will against a proper view of its limits. From this perspective, excluding the enumeration principle and putting aside the First Amendment, we should have lost. Justice Ginsburg was thus perfectly consistent with her own view of the constitution and the Court’s properly limited role when she wrote that whatever the Court’s view of the policy of the Sonny Bono Act, it was not the Court’s job to invalidate it.
This view also explains the general astonishment in the Bar about our bringing this case in the first place. For it was first year constitutional law throughout the 1990s that the Court should defer to Congress on the scope of enumerated powers. Since the New Deal, the Court had repeatedly held that there was no challenge of a statute by Congress on the grounds that it exceeded enumerated powers so long as there was any “rational basis” for that statute (where rational basis means, is there a hypothetical set of facts under which this statute makes sense). And again, under that standard, we should have lost. But constitutional law did not end in 1990. Instead, beginning with the Lopez case, and then confirmed in Morrison, Chief Justice Rehnquist articulated a different way of thinking about enumerated powers. The question was no longer simply rational basis. The question was now also, is there a stopping point. Does a particular interpretation of Congress’s enumerated power yield the conclusion that its power is unlimited. If it does, then that interpretation must be rejected.
The context of those cases was the Commerce Power. But there was nothing in the opinions, or in logic, that would explain why the principle would apply to the commerce power and not elsewhere. Indeed, this was the strongest argument made by the dissents against the principle: That it would entail a general limitation on Congress’s power that was totally new in constitutional law.
It was new. And whether or not justified, our view was that this principle of constitutional law showed precisely why the power perpetually to extend copyright terms mean that copyright terms were not “limited.”