Jun 27, 2011

Posted in Uncategorized

Oliver Wendell Breyer

Justice Breyer’s dissenting opinions in Brown v. EMA (with his strong deference to the legislatures and eagerness to find reasons to uphold laws limiting First Amendment rights, see here, here, and here) and Sorrell v. IMS Health (with his invocations of the specter of Lochner), as well as his dissents in McDonald and Heller, have convinced me that he is our modern-day Justice Holmes.

Justice Breyer seems to be a strong majoritarian who is most-willing to uphold the state’s attempts to infringe on individual liberty interests.

And I’m sure Justice Breyer would take this as a compliment. Others might not.

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  • http://Website Anderson

    Given that Holmes’s dissent in Abrams remains one of the classic judicial affirmations of the First Amendment, the Brown decision does not seem like the most apposite occasion for comparing Breyer to Holmes.

    • Josh Blackman

      Holmes did not like free speech as a liberty interest unto itself. He viewed it merely as a means to preserve the dissent of minorities in the marketplace of ideas. He viewed free expression, by itself, the same way he viewed the right of imbeciles not to be sterilized–not at all.

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