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ment its powers. In case after case, these justices had argued that the
Court’s role should be one of deference. Though the votes of these four
justices were the votes that I personally had most consistently agreed
with, they were also the votes that we were least likely to get.
In particular, the least likely was Justice Ginsburg’s. In addition to
her general view about deference to Congress (except where issues of
gender are involved), she had been particularly deferential in the context
of intellectual property protections. She and her daughter (an excellent
and well-known intellectual property scholar) were cut from
the same intellectual property cloth. We expected she would agree with
the writings of her daughter: that Congress had the power in this context
to do as it wished, even if what Congress wished made little sense.
Close behind Justice Ginsburg were two justices whom we also
viewed as unlikely allies, though possible surprises. Justice Souter
strongly favored deference to Congress, as did Justice Breyer. But both
were also very sensitive to free speech concerns. And as we strongly believed,
there was a very important free speech argument against these
retrospective extensions.
The only vote we could be confident about was that of Justice
Stevens. History will record Justice Stevens as one of the greatest
judges on this Court. His votes are consistently eclectic, which just
means that no simple ideology explains where he will stand. But he
had consistently argued for limits in the context of intellectual property
generally. We were fairly confident he would recognize limits here.
This analysis of “the Rest” showed most clearly where our focus
had to be: on the Conservatives. To win this case, we had to crack open
these five and get at least a majority to go our way.Thus, the single overriding
argument that animated our claim rested on the Conservatives’
most important jurisprudential innovation—the argument that Judge
Sentelle had relied upon in the Court of Appeals, that Congress’s power
must be interpreted so that its enumerated powers have limits.
This then was the core of our strategy—a strategy for which I am
responsible. We would get the Court to see that just as with the Lopez
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