osewalrus (osewalrus) wrote,

A final Carhart thought . . .

To the extent I can feel a drop of schadenfrued, it goes to seeing Ginsburg hoist by her own friggin' petard.

Ginsburg takes the majority to task for its deference to Congress' clearly erroneous findings nd for the majority's rather offensive speculations about how women must feel and the state interest in making sure women are duly informed. But Ginsburg engaged in a similar bit of nonesense -- but even nastier -- in Eldred v. Ashcroft. Why? Because Ginsberg "gets" how abortion is a fundamental rights issue, but doesn't "get" how copyright could possible impact anybody. So when it comes to the Copyright Term Extension Act, it's all "deference to Congress" and discarding the expert testimony of nobel economists as hardly worth considering. But when it comes to stuff she understands, suddenly the Court has a duty to investigate to protect a fundamental right.

Ginsburg did the same thing in her concurrence in Grokster. Unable to fathom how peer-to-peer might have uses beyond "pirating" music, Ginsburg would have imposed a ridiculous standard for liability. After all, why bother to remand for fact finding when it is "clear" that protecting innovation is merely a cover for "piracy."

I wouldn't feel so strongly about it if she hadn't been so viscious to Bryer and Stevens.

This is why we have arule of law and apply our principles equally no matter what right is before us.

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