Greetings Court fans!
Two more opinions today — and whopper opinions at that. One opinion (with all dissents) is 38 pages and the other is 83 pages (with an appendix!). Before I get to my “summaries” (I hope to sleep tonight, too!), it’s worth noting that after today, there are only two opinions outstanding from the October sitting: FCC v. Nextwave (a case about the interaction of the bankruptcy code and FCC rules for spectrum auctions), and Miller-El v. Cockrell (a habeas case on whether the court of appeals erred in denying a certificate of appealability for the defendant’s Batson challenge). There are also two Justices who have not authored a majority opinion from the October sitting (Scalia and Kennedy), and thus they’re the likely authors of the missing opinions.
Of course, the biggest news of the day is that the Bush administration has decided to weigh in on the affirmative action cases that will be heard later this Term. They haven’t filed their brief yet (it’s due Thursday), but according to news reports, they will argue that the University of Michigan’s admissions policy goes too far in using race as a factor in admissions.
Ok, now for the opinions…
First, the 83-page opinion: Eldred v. Ashcroft (0-618). In Eldred, the Court upheld Congress’ authority to extend the duration of both future and — as centrally at issue in this case — existing copyrights. Article I, Section 8, clause 8 of the Constitution provides that “Congress shall have Power . . . [t]o promote the Progress of Science . . . by securing [to Authors] for limited Times . . . the exclusive Right to their . . . Writings.” In 1998, Congress enlarged the duration of future and existing copyrights by 20 years. Petitioners, individuals and businesses whose products or services depend on copyrighted works that have gone into the public domain, challenged Congress’ authority to extend the terms of existing copyrights under the Copyright Clause and the First Amendment. The lower courts upheld the Act.
Justice Ginsburg (for Rehnquist, O’Connor, Scalia, Kennedy, Souter and Thomas) affirmed, primarily because whenever Congress has extended copyright terms in the past, it has always applied the new terms to existing works. (Ok, so that’s an overly simplistic summary of the opinion, but that rationale recurs throughout the opinion.) Ginsburg began her analysis by rejecting petitioner’s argument that the “limited Time” language from the Constitution means that once a time for a particular work has been set, it can never be altered. She found nothing in the meaning of “limited” to impose such a restriction on the constitutional language. Moreover, history reveals “an unbroken congressional practice” of extending copyright terms and applying the extensions both to future and existing copyrights. The history with respect to patents (covered by the same constitutional clause) is also consistent: throughout history, Congress and the Court had no trouble extending the duration of already-existing patents. With this context, the 1998 Act merely follows historical practice. After concluding that the Act complied with the “limited Times” provision, Ginsburg next concluded that it was a rational exercise of legislative power. The Court grants Congress substantial deference on this point, and so Ginsburg had little trouble finding a rational basis for the action: the Act allows American authors to compete more equitably on an international scale, and responds to demographic, economic, and technological changes.
Next, Ginsburg rejected petitioners’ contrary arguments. First, Petitioners contend that the Court’s reading allows Congress to circumvent the “limited Time” language by creating perpetual copyrights through repeated extensions. Ginsburg noted that that was hardly the case before the Court, and in any event, this extension was no different from earlier extensions. Next, Ginsburg rejected the argument that the extensions overlooked the requirement of “originality” that in an earlier opinion, the Court had held was the “sine qua non” of a copyright. According to Ginsburg, that decision was inapposite because it did not address copyright duration. Similarly, the fact that an extension does not necessarily “promote the Progress of Science” does not undermine the extension, because it is primarily for Congress to determine how best to achieve that goal. And Congress has routinely extended existing copyrights. (See the theme again?) Ginsburg also rejected the argument that copyright necessarily “imbeds a quid pro quo” (protection in exchange for a writing) and thus that an extension without an exchange is invalid. In light of the history of copyright extensions, any bargain would necessarily include the promise for copyright holders that they would obtain the benefit of any extensions enacted while their copyright was still in force. Finally, Ginsburg rejected the argument that the extension should be evaluated under heightened judicial review to ensure that it serves the purposes of the clause, noting that such review would be inconsistent with the constitutional grant of authority to Congress to define the scope of the substantive right.
Turning to the First Amendment challenge, Ginsburg dispatched that argument quickly. The Copyright Clause and First Amendment were adopted at around the same time, suggesting that in the Framers’ view, the monopolies granted by the Copyright Clause were consistent with the First Amendment. Moreover, according to Ginsburg, copyright law includes its own “built-in” First Amendment accommodations.
Stevens and Breyer filed separate dissents. According to Stevens’ exhaustive historical survey, the historical practice with respect to copyright extensions was not as clear and easy as portrayed by the majority. Ultimately, Stevens concludes that Congress may not extend the scope of a patent monopoly, and thus may not extend the life of a copyright beyond its expiration date. Stevens also contends that the majority’s approach effectively leaves Congress’ actions under the Copyright Clause unreviewable. Breyer contends that the Act’s extension create a virtually perpetual copyright, and that this action inhibits the progress of science. He would invalidate any act (1) if the significant benefits it bestows are private, not public, (2) if it threatens seriously to undermine the expressive values the Copyright Clause embodies, and (3) if it cannot find justification in any significant Copyright clause-related objective. Essentially, Breyer would invalidate the 1998 Act on practical terms; because the practical and economic impact of the Act (according to Breyer) is so overwhelmingly negative, the Act is invalid.
Turning next to the shorter opinion, Barnart v. Peabody Coal (01-705, 01-715), I’ll do a somewhat shorter synopsis. (Give me a break on the lack of detail here, ok? It’s a Souter opinion on coal industry retiree health benefits.) Justice Souter (for Rehnquist, Stevens, Kennedy, Ginsburg, and Breyer) upheld the operation of a statutory scheme designed to provide health benefits for retired coal workers. Under a 1992 Act, the Commissioner of Social Security must assign coal industry retirees to an operating coal company which would then be responsible for providing the assigned retirees’ health benefits. Some retirees would remain “unassigned” however, and thus the Act established a funding mechanism to support the unassigned retirees. Although this mechanism had other (basically public) sources of funds, as a fall back, existing operators would have to pay for benefits of unassigned retirees. The details are rather dense, but from what I can tell, an operator’s obligation to pay for benefits of unassigned retirees turns on the number of assigned retirees associated with the operator. The “assignment” process was to be complete by October 1, 1993, but government being government, approximately 10,000 beneficiaries were assigned after that date. The question in this case is whether those “late” assignments were valid.
The coal companies argued (obviously) that they were invalid, but Souter rejected that argument, noting a reluctance to find that every failure by an agency to observe a procedural requirement voids subsequent agency action. Moreover, Souter declined to interpret the language setting the deadline as a “jurisdictional” provision, citing cases. Souter also found support for his conclusion in the structure of the statute, and rejected two textual arguments put forward by the companies. (Cursory treatment, I know. But trust me, this is all very dense and not that interesting. And besides, would you really read it if I explained the intricacies of the history of the “Coal Industry Retiree Health Benefit Act of 1992”?). Ultimately, Souter’s opinion concludes by noting that the policy of the Act was to assign the greatest number of beneficiaries to a responsible operator. To conclude that the failure to assign them by a particular date was a jurisdictional defect would defeat that goal because it would read the Act to allocate the least, not the greatest, number of beneficiaries.
Scalia dissented, joined by O’Connor and Thomas. Scalia claims that the majority’s reading gives the Commissioner an “unexpiring” authority to assign retirees, a reading Scalia believes is totally inconsistent with the statutory language. According to Scalia, once the deadline expired, the Commissioner’s authority to assign expired. Thomas penned a separate (mercifully short) dissent to emphasize the obvious rule that courts “construe a statutory term in accordance with its ordinary or natural meaning.” Thus, “shall” means “shall.”
On that note, I shall go to bed. As always, I welcome your comments and questions. Thanks for reading.
Sandy
From the Appellate Practice Group at Wiggin & Dana.
For more information, contact Mark Kravitz or Sandy Glover
at 203-498-4400, or visit our website at www.wiggin.com.