Thomas, J., dissenting
was even more essential in the 19th century before the proliferation of federal and state regulatory law fundamentally altered the role that common-law judging played in expounding upon the law. See also post, at 2 (Ginsburg, J., dissenting).
These differences provide crucial context for Banks’ reasoning. Specifically, to ensure that judicial “exposition and interpretation of the law” remains “free for publication to all,” the word “author” must be read to encompass all judicial duties. Banks, 128 U. S., at 253. But these differences also demonstrate that the same rule does not a fortiori apply to all legislative duties.[1]
C
In addition to being flawed as a textual and precedential
- ↑ Although legislative history is not at issue in this case, the majority also contends that its rule is necessary to fend off the possibility that “[a] State could monetize its entire suite of legislative history.” Ante, at 17. Putting aside the jurisprudential debate over the use of such materials in interpreting federal statutes, many States can, and have, specifically authorized courts to consider legislative history when construing statutes. See, e.g., Colo. Rev. Stat. §2–4–203(1)(c) (2019); Iowa Code §4.6(3) (2019); Minn. Stat. §645.16(7) (2018); N. M. Stat. Ann. §12–2A–20(C)(2) (2019); N. D. Cent. Code Ann. §1–02–39(3) (2019); Ohio Rev. Code Ann. §1.49(C) (Lexis 2019); 1 Pa. Cons. Stat. §1921(c)(7) (2016). Given the direct role that legislative history plays in the construction of statutes in these States, it is hardly clear that such States could subject their legislative histories to copyright.
Without briefing on this issue, I am not willing to make that leap. See Hixson v. Burson, 54 Ohio St. 470, 485, 43 N. E. 1000, 1003 (1896) (“reluctantly overrul[ing] the second syllabus” of a previous decision); Holliday v. Brown, 34 Neb. 232, 234, 51 N. W. 839, 840 (1892) (“It is an unwritten rule of this court that members thereof are bound only by the points as stated in the syllabus of each case”); see also Frazier v. State, 15 Ga. App. 365, 365–367, 83 S. E. 273, 273–274 (1914) (clarifying the meaning of a court-written headnote and emphasizing that to understand an opinion’s meaning, the headnote and opinion must be read together); United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337 (1906) (acknowledging that some state statutes rendered headnotes the work of the court carrying legal force).
