Tim, I think your Miss Manners School of Jurisprudence offers an inspired and startling link between Grokster and the two Ten Commandments cases. You are on to something, though I’m not sure you have the right label for it. What O’Connor and Breyer are looking for may not be etiquette, but rather something more like sincere effort on the part of those whose acts are being challenged. The justices, you suggest, are more likely to give a passing grade to a government agency or company that is really, truly trying to act appropriately, legally, and constitutionally than to one that isn’t.
There may be something to that. In Grokster, for example, the court looked closely at what the file-sharing defendants said they wanted to be doing. (Disclosure: My Los Angeles O’Melveny partner Robert Schwartz worked on Grokster on behalf of the music and recording industry and urged the ultimately successful argument that triggered Tim’s theory.) That argument, instead of ruling out technologies, identifies market participants who are inducing copyright infringement. In Tim’s view, this was seen by some justices as failing to act “respectably.” As constitutional law scholar Kathleen Sullivan sharply notes on SCOTUSblog.com, that approach provides some comfort to justices like Breyer who “are anxious that courts not do anything to strangle little iPods in their cradles.”
I hope by the time this entry is posted that Justice Scalia has left for a summer teaching gig without Internet access in some really nice foreign venue (he won’t use their law, but he will drink their wine). The idea that a determination of legality could turn on an assessment of how earnestly a litigant did or did not try to do the right thing would send him through the marble roof. The theory is one he would call lawless; that doesn’t necessarily mean that it lacks explanatory power.
It’s hard to believe that the Rehnquist Court may never sit again. It has become like a family. Rhetoric that is sharply critical of colleagues appears less and less frequently in the justices’ opinions, even Scalia’s. Every impression I have is that the justices believe that the court is functioning well as an institution under this chief’s leadership. They all seem genuinely to like their chief. If a new chief joins the court, the effects will be more profound than we realize, in ways we probably cannot imagine.
I think William Rehnquist will be seen as one of history’s most influential chief justices. In no small measure by the power of his intellect, he made state sovereignty a central principle of American constitutional law. I believe that this state-centered jurisprudence unduly diminishes the nationalist triumph at the 1787 Philadelphia Convention and unjustifiably marginalizes the impact of the great Civil War amendments. But few if any in our history have been as effective in this ongoing debate as he. Even more important is his role in making the court the institution that dominates constitutional interpretation, firmly entrenching the supremacy of the judicial branch over the president and Congress. This court has not hesitated to place some judicial limits on the executive branch’s treatment of detainees, even in time of war, and robustly to defend freedom of speech. Nor did it hesitate to step in ahead of Congress to decide a disputed presidential election. On balance, will that exalted judicial role turn out to be good for America and its people? It is too early to tell. Way too early.