2. That is surely true in Aereo, where the court is genuinely at sea. Oral argument revealed a widespread disposition to view Aereo’s business model as too clever by half — using thousands of tiny “personal” antennas to collect and transmit broadcast television without paying the fees that apply to cable companies who do the same. The justices seem to be struggling to find a way to slap Aereo down without damaging the legal framework that today protects cloud companies like Dropbox from the copyright plaintiff’s bar. The Court seems to be reaching for a creative way out of this predicament. That’s not good, for the third reason:
3. This was an April argument. In fact it was so late in April that the opinion probably wasn’t assigned until the last Friday of the month. That’s important because the court aims to finish its business and go on recess by the end of June. And since there will surely be concurring or dissenting opinions, simple fairness and tradition require that the justices in the minority see the majority opinion by June 1. That means the justice drafting the Court’s opinion has only five weeks both to figure out how to reach the desired result and to produce a detailed opinion that scans the field and explains how its decision fits into that context. That’s a big task, and it can’t be done by starting from scratch, even with the help of a law clerk. The justice assigned the case will have to fall back on briefs filed by interested parties, all of whom drafted their submissions to teach the Court all the copyright law and facts that fit their interests.
It will be very difficult for the Court to see past those interests as it drafts, especially if it’s trying to chart a new path on a tight deadline. Sometimes gaps and mistakes can be cured in the back and forth between the majority and the dissenters. But not in June. By the time the dissent is drafted, there may only be a week or two before recess. The opinions are more likely to talk past each other than to engage in a dialogue.
This is a recipe for error. The errors may not be obvious, of course. They could be no more than a misguided footnote, but that footnote could easily make law for a generation if the Court never returns to this dusty corner of the US Code. As Justice Jackson once said of the Court, “We are not final because we are infallible, but we are infallible only because we are final.”
It is also a recipe for a splintered Court. If a justice isn’t sure the assigned drafter will produce an acceptable rationale, or fears there won’t be time to hone the draft into something he or she supports, the temptation will be to begin writing a separate opinion soon, just in case. And, once written, the draft is likely to seem more persuasive to its author than someone else’s work. That’s how separate opinions proliferate, so that the lower courts must figure out what the Court actually held by counting noses rather than construing text. A divided Court has the advantage, I suppose, of avoiding error, since none of the justices’ opinions is authoritative. But it often leaves the law less certain than before the Court spoke. Which means that the Court will have to take more cases to clear up the confusion.
I could be completely wrong, but my money is on a decision in Aereo that leaves copyright law worse off than it is right now.