Linda Greenhouse on Justice Breyer’s Dissent in EMA: “most unusual judicial performance”

July 14th, 2011

In the New York Times, Linda Greenhouse labels Justice Breyer’s dissent “most unusual judicial performance” this term. If it makes the top of Linda’s end-of-term scorecard, perhaps this answers, in part, any questions about why David and I wrote about it. It’s an important, and “unusual” opinion.

Greenhouse also focuses on the fact that Breyer went out of his way to cite contradictory studies that were never briefed to the Court, something he has done several times, a point we made in our Op-Ed.

When Greenhouse–who has written nostalgically about a return to the Warren Court jurisprudence–is criticizing Justice Breyer, and calling Justice Scalia’s opinion “forcefully libertarian” (!) you know something is awry in the realm of active liberty.

Here is the relevant passage:

In this case, Brown v. Entertainment Merchants Association, the United States Court of Appeals for the Ninth Circuit had found that the California law violated the First Amendment, and by a vote of 7 to 2, the Supreme Court agreed. Even Justice Samuel A. Alito Jr., who in earlier opinions dissenting from rulings that protected hate speech and depictions of animal cruelty had seemed the justice most attentive to arguments about the harms inflicted by unfettered free speech, found the California law unconstitutionally vague. (He did not sign Justice Antonin Scalia’s forcefully libertarian majority opinion.)

Most unusual judicial performance: Justice Alito having forfeited his usual spot on the First Amendment spectrum in the video games case, his place was taken by Justice Stephen G. Breyer, who voted to uphold the statute. Justice Breyer added two appendices to his dissenting opinion, comprising a 14-page list of scientific articles on the psychological harm of playing violent video games. The much longer “Appendix A” listed articles concluding that the games were in fact harmful, while the shorter “Appendix B” listed articles that either did not support or that actually rejected the claim of harm.

Justice Breyer does not employ footnotes in his opinions, and has collected references in appendices with some frequency. His penchant for original research has also occasionally led him outside the record of the case at hand. But the sheer size of this offering, consisting of contradictory articles neither cited to the court by the parties nor vouched for by the justice himself qualifies the Breyer dissent for the distinction of “most unusual judicial performance.”

This analysis is foreign to traditional First Amendment analyses, and apparently offends Linda Greenhouse’s sensibilities. I find myself largely in agreement with what Linda Greenhouse wrote.

Cross-Posted at