Patterico's Pontifications


And That’s the Name of My Opinion — Or My Name Isn’t Stephen Breyhart

Filed under: General,Judiciary — Patterico @ 12:17 am

In the past I have picked on Harry Reid for criticizing Justice Thomas’s decisions without knowing what they actually said.

But maybe I was too harsh. After all, even Supreme Court Justices can get the names of their own opinions wrong. For example, yesterday on Fox News Sunday, Justice Breyer had the following exchange with host Chris Wallace:

CHRIS WALLACE: How do you, as a justice, decide what’s good precedent and what’s bad precedent?

BREYER: There are principles that help you decide . . . There are a number [of] different factors. And it’s going to take more than 12 minutes if I go into them here. But I can tell you, you can read some of them in Casey v. Polino, in the decision that Justice Souter, Justice O’Connor and Justice Kennedy wrote.

But as Howard Bashman notes, Casey v. Polino is an obscure ERISA case Breyer wrote when he was on the Court of Appeals. Breyer meant to refer to the case of Planned Parenthood of Southeastern Pennsylvania v. Casey.

This phenomenon is nothing new. During the partial-birth abortion argument, as Dahlia Lithwick noted (and she’s right, too — I heard the oral argument):

Breyer seem[ed] to continue to refer to the Stenberg case as, alternatively Stenhart or Cathcart.

He wrote that one too.

None of this would bother me that much, if I thought he remembered (and gave deference to) the holdings of the decisions — and more importantly, to the reasonable meaning of the Constitution. But having read a few of his opinions, I think he is as scatterbrained on the law as he is on the names of his own opinions.

17 Responses to “And That’s the Name of My Opinion — Or My Name Isn’t Stephen Breyhart”

  1. i think he’s a moron. i clicked on a yahoo story where he was advocating “more rights for minorities” and it quoted him as being willing to “go outside the text of the constitution.” that’s an uh-oh. let’s see if i can get you a link.

    assistant devil's advocate (2f1ce9)

  2. It is quite simple Bryer thinks the Constitution says waht you want it to say.

    davod (5fdaa2)

  3. Breyer’s behavior is why I’m alarmed whenever people think the judiciary should be a super-legislature.

    sharon (dfeb10)

  4. The problem I see is that these judges are either Repulicans/conservatives or Democrats/liberals. I’d like to see a court that simply decides the case, rather than write law into opinions.

    Here is the money quote from the article, assuming it is correct:

    “We’re the boundary patrol,” Breyer said, reiterating themes in his 2005 book that argue in favor of race preferences in university admissions because they would lead to diverse workplaces and leadership.

    This is an example of how personal belief is woven into opinions. That statement is a political opinion, not a fact or IMHO as a non-lawyer a constitutional guarantee.

    I’m rapidly losing faith in the future of our country. All three branches of government are corrupted by the power they hold. I sincerely hope that “we the people” can find a way to fix it.

    Chris Farley (b0b468)

  5. We can: re-elect a President who will appoint judges willing to simply decide the case, rather than write law into opinions, and a Senate willing to confirm them. Unfortunately, we just failed the second part.

    Xrlq (f52b4f)

  6. Riiight….He’ll see to it that nobody gets too powerful except himself/the institution he represents. To oversee how much power others get is the supreme power in and by itself. And boy, does he like it this way! Anybody who’s seen him in action knows this guy has no sense of humility about the task he’s been given and before anyone/anything higher than his ego.

    Pansy (371954)

  7. I’ve blogged about Patterico’s dangerous criticism of Justice Breyer, here.

    Andrew (08ba2c)

  8. It seems the older I get, the more I forget but sometimes forgetfulness can be a sign of something more serious. St. Louis University researchers have identified a simple exam that can help doctors determine whether those moments are more than routine forgetfulness. Even Supreme Court Justices should take exams like this.

    DRJ (a41dd4)

  9. How do we deal with a political class that has divorced itself from the country? Mr. Jefferson’s words are non-PC, and scoffed at (…tree of liberty…and all that); but, external events might provide a trip-wire, whether we want it to or not. Pat, you need to be more definitive on the abilities of SC Justices.

    Another Drew (8018ee)

  10. Justice Beyer is not a very bright man. He indeed does tend to give simplistic lectures about foundations of the constitution that are far from “foundations>” Then, if he’s actually asked a reasonable question, his voice tends to get a tad louder and his words are formed with electric distinctions. He intends to intimidate because he can’t give even a remotely serious response.
    It must be difficult for him these days with such brilliant minds such as Roberts, Alito..and my other two favorites. They can smack him down academically but the guy I honestly believe is so egocentric, he does’nt even understand how simplistic and absurd his reasoning appears to people like me with a elementary understanding of the constitution and case law.

    alexandra2 (015be6)

  11. It’s a good thing that the Republicans organized themselves and fought tooth-and-nail against Mr Breyer’s confirmation, rather than just lying down and accepting it, huh?

    Dana (3e4784)

  12. “…such brilliant minds such as Roberts, Alito..and my other two favorites”


    Their names are Scalia and Thomas.

    It’s okay. You don’t have to be embarrassed that you didn’t know their names. Just ask next time.

    We won’t make fun of you.

    Leviticus (43095b)

  13. thanks Leviticus,

    I did know their names but figured people knew who I was talking about. Although I was rather young when Thomas was nominated , I found myself quite interested in the whole nomination fiasco and watched almost all the coverage.

    alexandra2 (015be6)

  14. I took a class on Administrative Law taught by Breyer at Harvard Law School ten years or so ago. He struck me at the time as scatter-brained and overly concerned with courting popularity. Since that time, I have become convinced that he is (along with Ginsburg) a tremendous threat to democracy and liberty—to him, the Constitution means exactly what he wants to mean at the time. Lets face it: a “living constitution” = “no constitution”–instead we ignorant hoi polloi are ruled by a black-robed priesthood handing down stone tablets from the mount.

    McGee (56001e)

  15. To alexandra2,

    As far as Supreme Court Justices go, you know that one guy? The one with the robes? You know I mean.

    Yeah…I hate that guy.

    Leviticus (43095b)

  16. I mean, “You know WHO I mean.”

    But I’ll assume you knew I meant to say that.

    Leviticus (43095b)

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