Jun 28, 2010

Posted in McDonald v. Chicago, Uncategorized

Stevens Solo Dissent Exits With a Whimper, Hands the Torch to Breyer

In McDonald v. Chicago, Justice Stevens wrote an epic, 57 page dissent. The only problem is, no one joined it. Justice Breyer dissented separately, joined by Justice Ginsburg and Justice Sotomayor.

This is notable for several reasons.

First, Stevens has a strong reputation of building coalitions, both in dissent and in the majority. In many detainee cases, and 8th amendment cases, Stevens was able to sway Justice Kennedy in a number of 5-4 splits, by assigning him the opinion. Another example, Stevens kept together the 4 votes in the Heller dissent, even though Breyer’s dissent arguable is in conflict with Stevens dissent. Yet today, he wrote all by his lonesome self. Surely he could have written a dissent all the justices wanted to join. But this was his swan song. He wanted to do it his way, and was not concerned with keeping the other liberals on board.

Second, I see it as the passing of the progressive torch. Although Justice Ginsburg is the most senior liberal Justice, Justice Breyer is now the new leader of the Court. He is responsible for producing new theories of the Constitution and ideas about the law. Breyer, whose pragmatism knows no principled approach to the law, has no qualms about modifying his position in order to built a coalition of votes. While Justice Sotomayor may have some big ideas, she hasn’t told us about them yet. Assuming Kagan is confirmed, in light of her scarce publication record, I can’t imagine her serving as an ideas leader. Plus, as the junior justice, she likely won’t have too much sway.

Third, and perhaps most importantly, this opinion is largely useless. Sure, it gives a lot of refutation to the majority’s approach, and pokes fun at Justice Scalia. Sure, it provides an erudite exegesis of history on gun control laws. Sure, it makes many poignant criticisms of originalism. But so what? No one joined it. Stevens is now a retired justice. This is an opinion for the record books, that will have no more impact than Justice Souter’s recent speech at the Harvard Commencement–in other words, not much.

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  • “Assuming Kagan is confirmed, in light of her scarce publication record, I can’t imagine her serving as an ideas leader.”

    That observation is spectacularly premature. I do not understand why a scarce publication record to date would necessarily mean that her role going forward will be that of intellectual eunuch.

    This may be the Internet, but the quoted observation, and in fact the entire post, has the flavor of a newspaper columnist trying to fill space or a radio or television commentator trying to use up air time.

    • Josh Blackman

      I am hardly trying to use up air time. I will likely be blogging late into the evening. I think this is a very timely topic in light of JPS’s retirement. As for the intellectual eunich comment, you have seen my previous posts on Kagan’s 20-year silence of ideas. I don’t know how she expects to just turn it on after suppressing her instincts for so long.

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  • Alien-nation

    What is it that makes his opinion “useless?” Is it simply because no one joined it?

    Re Kagan: only time will tell.

    • Josh Blackman

      The fact that no one joined it, and Stevens is retiring, means that not a single one of the 8 existing justices agrees with it. Unless Kagan agrees with it is useless. Lower courts may cite to it, but Breyers dissent will become the predominant opinion for the non-incorporation view.

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