Thomas, J., dissenting
The majority does not confront this criticism head on. Instead, it simply repeats, without any further elaboration, its unsupported conclusion that “[t]he Court long ago interpreted the word ‘author’ to exclude officials empowered to speak with the force of law, and Congress has carried that meaning forward in multiple iterations of the Copyright Act.” Ante, at 16. This wave of the “magic wand of ipse dixit” does nothing to strengthen the majority’s argument, and in fact only serves to underscore its weakness. United States v. Yermian, 468 U. S. 63, 77 (1984) (Rehnquist, J., dissenting).[1]
B
In addition to its textual deficiencies, the majority’s understanding of this Court’s precedents fails to account for the critical differences between the role that judicial opinions play in expounding upon the law compared to that of statutes. The majority finds it meaningful, for instance, that Banks prohibited dissents and concurrences from being copyrighted, even though they carry no legal force. Ante, at 15. At an elementary level, it is true that the judgment is the only part of a judicial decision that has legal effect. But it blinks reality to ignore that every word of a judicial opinion—whether it is a majority, a concurrence, or a dissent—expounds upon the law in ways that do not map neatly on to the legislative function. Setting aside summary decisions, the reader of a judicial opinion will always gain critical insight into the reasoning underlying a judicial holding by reading all opinions in their entirety. Under-
- ↑ The majority’s approach is also hard to reconcile with the recognition in Wheaton v. Peters, 8 Pet. 591 (1834), that annotations prepared by the Reporter of Decisions could be copyrighted. Wheaton was paid a salary of $1,000, and it is difficult to say whether this salary funded his work on the opinions or his work on the annotations. See id., at 614, 617 (argument).
