Sunstein on the “Breyer Appendix”

April 3rd, 2014

In the Harvard Law Review, Cass Sunstein comments on Justice Breyer’s propensity add appendices to his opinions. He dubs it, the “Breyer Appendix.”

We might speak here of “the Breyer Appendix,” a worthy successor to the Brandeis Brief, in which Justice Breyer accompanies his opinions with an appendix citing a range of technical materials.6

6 See, e.g., Brown v. Entertainment Merchants Assn., 131 S.Ct. 2729, 2771–79 (2011) (Breyer, J., dissenting); Eldred v. Ashcroft , 537 U.S. 186, 267–69 (2003) (Breyer, J., dissenting); United States v. Lopez, 514 U.S. 549, 631–44 (1995) (Breyer, J., dissenting); Rubin v. United States, 525 U.S. 990, 996 (1998) (Breyer, J. dissenting from denial of certiorari).

Add to that list a 15 page appendix in McCutcheon. Note how these are all dissents.

Of course, while referring to technical documents to defer to the government may make sense in the administrative context, this evidence is much less credible when balancing constitutional rights.

The “Breyer Appendix” is a cousin of the “Breyer Page,” where SGB monopolizes an entire page in the oral argument transcript.