Why did Linda Greenhouse call Breyer’s Dissent in EMA: “most unusual judicial performance”

August 1st, 2011

Barry Friedman, in The Will of the People has this passage on point to Greenhouse’s criticism:

The cases in which the Supreme Court seems to deviate from public opinion most often are those involving the First Amendment, which could be explained because the First Amendment has its own special constituency, the press. Journalists love the First Amendment for obvious reasons (it protects freedom of the press). 80 The justices are more likely to be attacked in print (or praised) for their decisions in First Amendment cases than almost any other. 81 But journalists also may provide the justices with a distorted view of public opinion. The fondness of the media may explain the Court’s particular willingness to stand tough on certain First Amendment rights—such as for pornography and against school prayer—even when the country generally expresses contrary views.