Tyler: When the conservative majority veers back and
forth between tight constraints on Congress's
enumerated powers (Lopez and Morrison in the Commerce
Clause context) and virtually no constraint (Eldred,
in the Copyright Clause context) it matters little
whether Eldred, standing alone, is an activist
opinion. It is activist in context because its
reasoning is inconsistent with the closely comparable
Commerce Clause cases, thus leading to the impression
that the conservative majority is result-driven.
That was the point of the article, and I think it
stands. At the very least, if the conservative
majority was concerned about appearances and had an
argument for distinguishing between proper judicial
analysis of Congress's exercise of its enumerated
powers in the Commerce Clause and Copyright Clause
contexts, it could have offered it. That the
conservatives did not, and that they allowed Justice
Ginsburg (who has never adhered to the Lopez/Morrison
line) to write for them, speaks volumes.
Best regards.
- Chris Sprigman
--- Tyler Ochoa <tochoa[_at_]law.whittier.edu> wrote:
> >>> sprigman1[_at_]yahoo.com 01/22/03 08:00AM >>>
> In any event, whether or not the CTEA is bad policy,
> I believe that the
> Supreme Court's opinion in Eldred is bad legal
> reasoning and a worrying
> example of conservative judicial activism. See
>
http://writ.news.findlaw.com/commentary/20030120_sprigman.html
>
> <<<<<
>
> I have already expressed my opinion about the
> Court's legal reasoning,
> and I agree with many of the criticisms of the
> opinion in your piece. I
> also agree that there are many worrying examples of
> conservative
> judicial activism from the current Court. However,
> Eldred is not one of
> them. Eldred may be conservative in its outcome [it
> favors the
> wealthy], but it is decidedly NOT activist in its
> reasoning. Its
> reasoning is the epitome of true conservative legal
> reasoning: deference
> to legislative authority.
>
> Instead, the worrying examples of conservative
> judicial activism from
> the current court have to do with the frequency with
> which it overturns
> legislation and precedent with which it disagrees.
> But in Eldred, they
> upheld legislation against a Constitutional
> challenge, and they did not
> overturn any established judicial precedent in doing
> so. [They didn't
> respect the policy of Graham v. Deere as much as I
> would have liked, but
> I can't say that was activism.] Indeed, Stevens'
> dissent, which would
> have overturned several 19th Century term extension
> decisions [albeit
> those of lower courts], could well be considered
> more activist than the
> majority's.
>
> I also agree that the justices sometimes act in a
> result-oriented
> manner, but I do not believe the justices acted in a
> result-oriented
> manner in Eldred. O'Connor made that clear at the
> oral argument. She
> said this was clearly NOT what the Framers had in
> mind, but that didn't
> necessarily make it unconstitutional. I think
> Souter and Kennedy felt
> the same way. I think that if the nine justices had
> been voting as a
> legislature (but without lobbying and campaign
> contributions) they might
> very well have rejected the CTEA. Instead, the
> majority [or at least
> some] truly believed that this was a decision for
> Congress, not the
> Court. I'm disappointed with the decision, but this
> is not a case in
> which I question their motivation.
>
> Tyler T. Ochoa
> Professor and Co-Director
> Center for Intellectual Property Law
> Whittier Law School
> 3333 Harbor Blvd.
> Costa Mesa, CA 92626
> (714) 444-4141, ext. 243
> (714) 444-1854 (fax)
> tochoa[_at_]law.whittier.edu
>
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Received on Mon Jan 27 2003 - 23:06:48 GMT