September 28, 2010

I READ LINCOLN CAPLAN’S PIECE ON JUSTICE BREYER AND FOUND IT QUITE UNPERSUASIVE, but didn’t think it was worth taking the time to post about. Orin Kerr took the time. “Sure, if you want to cherry-pick some stats to make Justice Breyer seem like a paragon of judicial restraint, you ignore the state cases and just recite the figure for challenges to federal laws. But you could cherry-pick the other way to reach the opposite conclusion: If you want Breyer to come off as a judicial activist, you note that he is among the Justices most likely to strike down state legislation. The reality is more complicated: Breyer is roughly average among the Justices in terms of how often he votes to strike down legislation, with his tendencies, like those of the other liberal Justices, being more likely than average to strike down state laws and less likely than average to strike down federal laws.”

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