Justice Breyer’s Concurrence in Schuette

Gerard Magliocca

Gerard N. Magliocca is the Samuel R. Rosen Professor at the Indiana University Robert H. McKinney School of Law. Professor Magliocca is the author of three books and over twenty articles on constitutional law and intellectual property. He received his undergraduate degree from Stanford, his law degree from Yale, and joined the faculty after two years as an attorney at Covington and Burling and one year as a law clerk for Judge Guido Calabresi on the United States Court of Appeals for the Second Circuit. Professor Magliocca has received the Best New Professor Award and the Black Cane (Most Outstanding Professor) from the student body, and in 2008 held the Fulbright-Dow Distinguished Research Chair of the Roosevelt Study Center in Middelburg, The Netherlands. He was elected to the American Law Institute (ALI) in 2013.

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4 Responses

  1. Joe says:

    Breyer supports the political process precedents that the plurality wishes to weaken somewhat and Scalia/Thomas wishes to overrule. But, he argues that they do not really apply here, since unelected university officials make the ultimate decisions. In an extended discussion that he simply doesn’t substantively address, Sotomayor challenges this.

    I respect, if not necessarily agree with Breyer’s opinion, but this aspect of it is disappointing.

    • PrometheeFeu says:

      Is there a summary of the Sotomayor dissent that you like? This case seemed particularly easy to me and so I have trouble understanding where the dissent is coming from.

  2. John Dereszewski says:

    I believe that Breyer saw the question much as he did the issue involving the steps taken by the Seattle school board to combat the re-segregation of the schools that the court – over his dissent – threw out several terms ago. In both situations, he believes the equal protection clause permits the democratic process to decide the questions. This was the main point that he wished to make.

    By the way, his attempt to distinguish the political process cases was particularly lame and was easily demolished by the dissent. In the least, Hunter could easily have been distinguished by the facts of the case.

  3. It is disappointing, this aspect of Breyer’s opinion, but I respect it.