About | HeinOnline Law Journal Library | HeinOnline Law Journal Library | HeinOnline
LOG IN
LOG IN

59 Syracuse L. Rev. 299 (2008-2009)
Weighing Needs and Burdens: Justice Breyer's Heller Dissent

handle is hein.journals/syrlr59 and id is 303 raw text is: WEIGHING NEEDS AND BURDENS: JUSTICE BREYER'S HELLER DISSENT Linda Greenhouset The titanic clash of the competing historical visions embraced by the majority opinion and principal dissent in District of Columbia v. Heller1 has all but drowned out a distinctive third voice, that of Justice Stephen G. Breyer. That is unfortunate, and not only because Justice Breyer's dissenting opinion-at forty-four pages, nearly as long as the forty-six- page principal dissent by Justice Stevens-evidently hit home with the majority, provoking a pointed response from the author of the Court's opinion, Justice Scalia. Justice Breyer is Justice Scalia's main competitor on the playing field of constitutional interpretation, and the intellectual combat between them has provided the current Supreme Court with one of its most consistent and consequential narratives.2 For that reason alone, Breyer's dissent would be worth more than the scant notice it has received. This is not to suggest that the Breyer dissent is simply the latest episode in the long-running drama of Breyer versus Scalia. It is a good deal more interesting and significant than that. In both theme and structure, Breyer's Heller dissent is the embodiment of the interpretive approach he offered and defended in his 2005 book, Active Liberty.3 That book, an outgrowth of his 2001 Madison Lecture at New York University4 and his 2004 Tanner Lectures at Harvard,5 is itself noteworthy as an unusual effort t Knight Distinguished Journalist-in-Residence and Joseph M. Goldstein Senior Fellow in Law, Yale Law School. Supreme Court Correspondent, The New York Times, 1978-2008. 1. District of Columbia v. Heller, 128 S. Ct. 2783 (2008). 2. See, e.g., CHRISTOPHER L. EISGRUBER, THE NEXT JUSTICE: REPAIRING THE SUPREME COURT APPOINTMENTS PROCESS 107-110 (2007) (discussing the judicial philosophies of Justices Breyer and Scalia); Paul Gewirtz, The Pragmatic Passion of Stephen Breyer, 115 YALE L.J. 1675, 1689 (2006); Linda Greenhouse, Between Certainty & Doubt: States of Mind on the Supreme Court Today, 6 GREEN BAG 241, 243 (2003). 3. STEPHEN BREYER, ACTIVE LIBERTY: INTERPRETING OUR DEMOCRATIC CONSTITUTION (2005). 4. Stephen Breyer, Associate Justice, Supreme Court of the United States, The Fall 2001 James Madison Lecture: Our Democratic Constitution (Oct. 22, 2001). 5. Stephen Breyer, Associate Justice, Supreme Court of the United States, Harvard University Tanner Lectures on Human Values 2004-2005: Our Democratic Constitution (Nov. 17-19, 2004).

What Is HeinOnline?

HeinOnline is a subscription-based resource containing thousands of academic and legal journals from inception; complete coverage of government documents such as U.S. Statutes at Large, U.S. Code, Federal Register, Code of Federal Regulations, U.S. Reports, and much more. Documents are image-based, fully searchable PDFs with the authority of print combined with the accessibility of a user-friendly and powerful database. For more information, request a quote or trial for your organization below.



Short-term subscription options include 24 hours, 48 hours, or 1 week to HeinOnline.

Purchase Access

Contact us for annual subscription options:

Contact Us

Already a HeinOnline Subscriber?

Log In

profiles profiles most