the fear

The greatest fear we had about this strategy (beyond the backfiring point) was that it all presupposed that the Court got it. It presupposed that the Court understood the problem with extensions of existing terms; that it understood the harm that would do to the internet, and the ability of people to build on the internet; that it saw the law as useless. And before the argument we struggled over and over again with how best to focus the Court on the costs, if in fact they didn't get it.

the argument

(1) The most important first indication that was absolutely clear from the argument is that our fear was misplaced. The Court clearly got it. Though the other side had written literally 300 pages trying to show all the good CTEA did (and pronounce it like it is a disease — sateeeya), the Court hadn't bought any of it. Congress was not acting to promote progress, it was acting to reward "court favorites." The only question the Court was struggling with is whether it has the power to do anything about it.

Now pause for a second to think about how important and good this struggle is. First: It is a rare but valuable exercise for any branch of government to worry about the scope of its own power. And the greatest virtue the Court exercises is the virtue of self-restraint. This is a reason to respect the Court, not criticize it (though how they exercise their restraint, or where, can be criticized, as I suggest below). But the general idea that it will restrain itself, despite believing a law is stupid, is a feature, not a bug in our constitutional tradition.

And second: that they are struggling with this question of restraint means they clearly get the problem. They are motivated to do the right thing; they are resisting the right thing for the right reasons. Both sides are good.

(2) Though it took some hammering, they clearly understood by the end of my argument the dynamic of the argument that we were making. I said, over and over again, that we were advancing an interpretation of "limited times" that had the virtue of actually imposing limits, because otherwise the clause would have no limits. The aim, and I think effect, was to repeat this idea so many times that they had in their heads a simple picture: There was a way to read "limited" so that Congress would not have unlimited power.

Thus, for example, when I said that limited should be read like "limited edition print," Justice Souter interrupted to say that this was a different kind of case (not a contract, etc.), and I said, yes, but we are simply showing you that there is a plain meaning of the term "limited" that actually produces a limit. He's a very careful justice; he got the point, as did the court by the end. That's not to say he bought it, but he clearly gets the dynamic of the argument: if you believe you must impose a limit on Congress's power, here's a way to impose that limit.