Thomas, J., dissenting
content to accept these precedents reflexively, without examining the origin or validity of the rule they announced. For the majority, it is enough that the precedents established a rule that “seemed too obvious to adorn with further explanation.” Ante, at 6. But the contours of the rule were far from clear, and to understand the scope of the doctrine, we must explore its underlying rationale.
In my view, the majority’s uncritical extrapolation of precedent is inconsistent with the judicial role. An unwillingness to examine the root of a precedent has led to the sprouting of many noxious weeds that distort the meaning of the Constitution and statutes alike. Although we have not been asked to revisit these precedents, it behooves us to explore the origin of and justification for them, especially when we are asked to apply their rule for the first time in over 130 years.
The Court’s precedents suggest three possible grounds supporting their conclusion. In Banks, the Court referred to the meaning of the term “author” in copyright law. While the Court did not develop this argument, it is conceivable that the contemporaneous public meaning of the term “author” was narrower in the copyright context than in ordinary speech. At the time this Court decided Banks, the Copyright Act provided protection for books, maps, prints, engravings, musical and dramatic compositions, photographs, and works of art.[1] Judicial opinions differ markedly from these works. Books, for instance, express the thoughts of their authors. They typically have no power beyond the ability of their words to influence readers, and they usually are published at private expense. Judicial opinions, on the other hand, do not simply express the thoughts of the judges who write or endorse them. Instead, they elaborate
