14
GEORGIA v. PUBLIC.RESOURCE.ORG, INC.
Thomas, J., dissenting
standing the reasoning that animates the rule in turn provides pivotal insight into how the law will likely be applied in future judicial opinions.[1] Thus, deprived of access to judicial opinions, individuals cannot access the primary, and therefore best, source of information for the meaning of the law.[2] And as true as that is today, access to these opinions
- ↑ For instance, this Court has not overruled Lemon v. Kurtzman, 403 U. S. 602 (1971), which pronounced a test for evaluating Establishment Clause claims. But a reader would do well to carefully scrutinize the various opinions in American Legion v. American Humanist Assn., 588 U. S. ___ (2019), to understand the markedly different way that this precedent functions in our current jurisprudence compared to when it was first decided. Moreover, sometimes a separate writing takes on canonical status, like Justice Jackson’s concurrence regarding the executive power in Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S. 579, 634–638 (1952) (opinion concurring in judgment and opinion of the Court); see also Katz v. United States, 389 U. S. 347, 360–361 (1967) (Harlan, J., concurring) (reasonable expectation of privacy Fourth Amendment test). Still other times, the reasoning in an opinion for less than a majority of the Court provides the explicit basis for a later majority’s holding. See, e.g., McKinney v. Arizona, 589 U. S. ___, ___ (2020) (slip op., at 5) (discussing Ring v. Arizona, 536 U. S. 584, 612 (2002) (Scalia J., concurring)); Estelle v. Gamble, 429 U. S. 97, 102 (1976) (incorporating into the majority the Eighth Amendment “evolving standards of decency” test first announced in Trop v. Dulles, 356 U. S. 86, 101 (1958) (plurality opinion)). Even “ ‘comments in [a] dissenting opinion,’ ” ante, at 15, sometimes reemerge as the foundational reasoning in a majority opinion. See, e.g., Franchise Tax Bd. of Cal. v. Hyatt, 587 U. S. ___ (2019) (discussing Nevada v. Hall, 440 U. S. 410, 433–439 (1979) (Rehnquist, J., dissenting)); Lawrence v. Texas, 539 U. S. 558, 578 (2003) (“Justice Stevens’ [dissenting] analysis, in our view, should have been controlling in Bowers [v. Hardwick, 478 U. S. 186 (1986),] and should control here”). These examples, and myriad more, demonstrate that the majority treats the role of separate judicial opinions in an overly simplistic fashion.
- ↑ Banks also stated that judicially prepared syllabi and headnotes cannot be copyrighted. 128 U. S., at 253. The majority cites these materials as further evidence of its broad rule, because the majority finds it beyond cavil that “these supplementary materials do not have the force of law.” Ante, at 15. The majority feels it appropriate to assume—without any historical inquiry—that the words “syllabus” and “headnote” carried the same meaning, or served the same function, in 1888 as they do now.
