Linda Greenhouse called Breyer’s dissent in Brown v. EMA the “most unusual judicial performance” this term. In today’s Opinionater, it seems she is no longer mad at SGB because of his dissent in Sorrell v. IMS Health.
In dissent, Justice Stephen G. Breyer argued that the majority was subjecting ordinary commercial speech to an “unprecedented” degree of scrutiny in a way that “threatens significant judicial interference with widely accepted regulatory activity.” Justice Breyer said the decision “opens a Pandora’s Box of First Amendment challenges to many ordinary regulatory practices.” And referring toLochner v. New York, the 1905 Supreme Court decision that summoned a constitutionally protected “right of contract” to block government regulation, he added: “At worst, it reawakens Lochner’s pre-New Deal threat of substituting judicial for democratic decision making where ordinary economic regulation is at issue.”
I’m glad Breyer is back on Greenhouse’s good side. That was a rough few months!