Sep 9, 2011

Posted in Harlan

Justice Breyer on Being in the Dissent

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I previouslycompared the views on being in the dissent  from Justice Harlan I and Justice Sotomayor: Justice John Marshall Harlan on being in the dissent:

“Of course I am wrong, because only the Chief Justice, and myself held those views, and as the majority decided the other way, we must believe that we were wrong.”

Justice Sonia Sotomayor on being in the dissent:

“I do think I was right,. I think the (majority) were wrong.”

Adam Liptak’s Sidebar column,  focuses on Breyer’s Perpetual Dissent (and cites a GMU Law Review article!)

In 2002, for instance, Justice Stephen G. Breyer acknowledged that the logic of a decision from which he had dissented two years before, Apprendi v. New Jersey, required juries, not judges, to determine the facts supporting some mandatory sentences. But, Justice Breyer wrote, “I cannot yet accept” the earlier decision.

This is similar to his position in McDonald and Heller. Even in his McDonald dissent, he refuses to accept the holding of Heller. Seems Breyer and Sotomayor are in the same boat here.

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