I always liked Antonin Scalia’s dissent in that case.
“We came within one vote of declaring the VCR contraband 30 years ago in Sony [v. Universal]. The dissent in that case was driven in part by the plaintiffs’ prediction that VCR technology would wreak all manner of havoc in the television and movie industries. The Networks make similarly dire predictions about
Aereo. We are told that nothing less than ‘the very existence of broadcast television as we know it’ is at stake. Aereo and its amici dispute those
forecasts and make a few of their own.… We are in no position to judge the validity of those self-interested claims or to foresee the path of future technological development. Hence, the proper course is not to bend and twist
the Act’s terms in an effort to produce a just outcome, but to apply the law as it stands…”
Oh totally. Scalia's copy shop analogy was spot on, and the majority's rebuttal was just "this is more like a video on demand service than a copy shop" was weak as heck and just goes back to their main "shut up about how it works we know what we're looking at" argument.
I think Scalia is right in this descent, but applying the same textualist logic to many other decisions he made doesn't make nearly as much sense. In other words, his textualism leads to a lot of "there's no rule that says a dog can't play basketball" type decisions.
Does a specific example come to mind? I've generally been a big fan of the opinions he writes, but I'd be interested to see what some of his weaker opinions are.
Castle Rock v Gonzales is probably one of the worst. After a woman with a protective order against her abusive husband was ignored by the police after he abducted their children sued the police department, Scalia basically ruled that police have no duty to do anything to help anyone. Even in a case where you have a court protective order that says the police "shall arrest" someone who violates the order.
The woman reported her children kidnapped and showed the order to the police and they refused to do anything and said she should just wait and he would probably come back.
The man showed up at the police station a day later with her 3 children, dead.
So now we have the precedent that even in the most extreme and obvious cases, police have absolutely no duty to uphold their oath.
This case was decided 7-2, so clearly it wasn't just Scalia. Generally speaking, when decisions are supermajority, it's because that's what the law and precedent really say. And the precedent that law enforcement doesn't have a "duty to protect" long predates this case, so it's not really surprising.
In general, it's worth keeping in mind that the point of courts is not to decide whether the outcome of the case is ethically or socially desirable. They're there to look at the laws and precedent and figure out how it applies to a given case. If the result is undesirable, it's something for the legislature to fix.
“We came within one vote of declaring the VCR contraband 30 years ago in Sony [v. Universal]. The dissent in that case was driven in part by the plaintiffs’ prediction that VCR technology would wreak all manner of havoc in the television and movie industries. The Networks make similarly dire predictions about Aereo. We are told that nothing less than ‘the very existence of broadcast television as we know it’ is at stake. Aereo and its amici dispute those forecasts and make a few of their own.… We are in no position to judge the validity of those self-interested claims or to foresee the path of future technological development. Hence, the proper course is not to bend and twist the Act’s terms in an effort to produce a just outcome, but to apply the law as it stands…”