Breyer On His Perpetual Dissents

July 2nd, 2013

In remarks at the Aspen Institute, a banged-up Justice Breyer offered some remarks on his propensity to perpetually dissent over and over and over again in the Apprendi line of cases.

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.

As he commented during Alleyne:

JUSTICE BREYER: I mean, in the one case you can say all that Apprendi did — it never should have been decided; I mean, some of us thought that — because in fact -­

JUSTICE SCALIA: I wonder who that could have been.


Here are his (partially captured) remarks at Aspen:

When a similar issue comes up again and again, At what point do I say alright, I’ve made my point. It’s time to go and change. The law did not take what i said. I don’t want to be in the minority forever. It is a personal question about law.

It seems that he is finished dissenting from Apprendi.