Beginning with its 2002 decision in Eldred v Ashcroft and thereafter continuing in the Roberts Court through its most recent decision in Google v Oracle, the US Supreme Court has embarked on an approach to copyright law best characterized as its ‘institutionalist turn’. The institutionalist turn refers to the reality that over the last decade and a half, the Court’s copyright jurisprudence has come to focus less and less on directly resolving substantive issues within the landscape of copyright doctrine. It has instead become a principal site of debate and disagreement over issues that have a direct bearing on the role, competence, and legitimacy of the Court within the copyright system.
The Court’s institutionalism in copyright is seen to cluster around three analytically interrelated themes: (i) the Court’s role as faithful agent interpreting Congress’s directives as contained in the complex Copyright Act of 1976, (ii) the nature of legislative-judicial interaction and deference in the domain of copyright lawmaking, and (iii) the continuity – or lack thereof – between copyright’s adjudicative mechanisms and other legal areas. This Article analyzes the origins and entrenchment of the Court’s institutionalism in its copyright jurisprudence and argues that while it may have allowed the Court to steer clear of divisive copyright issues in order to preserve its own legitimacy, it has at the same time made the Court an outsider to the modern copyright system and hurt the development of copyright doctrine and policy.
Balganesh, Shyamkrishna, The Institutionalist Turn in Supreme Court Copyright Jurisprudence (May 5, 2021). 2021 Supreme Court Review (forthcoming).