Stephen Breyer Says "Ouch!" Again

Having been kicked around very nicely by Judge McConnell, Justice Breyer now gets politely trashed one more, this time by Judge Richard A. Posner. Here's a sample:

"The bricolage [that Justice Breyer has assembled] is as ingenious as it is complex, but the curious consequence of such ecclecticism is that it puts the judge in approximately the position he would occupy if had no constitutional theory. For couldn't Justice Breyer pull a stick out of his bundle to justify any decision that he wanted to reach? It's not as if the sticks have different weights; each is available to tip the balance in a particular case."

Judge Posner's review, "Justice Breyer Thows Down the Gauntlet," 115 Yale Law Journal 1699 (May 2006), may be accessed here.

Update and Mea Culpa: I should have credited Maimon Schwarzschild's post at The Right Coast for leading me to Judge Posner's article, which Professor Schwarzschild calls "politely devastating." In addition, I see that Professor Mike Rappaport has also posted an entry at The Right Coast in which he administers a few more kicks.

Stephen Breyer Says "Ouch!"

In the June 2006 issue of The Harvard Law Review, Judge Michael W. McConnell reviews Supreme Court Associate Justice Stephen Breyer's book Active Liberty: Interpreting Our Democratic Constitution. The review, entitled "Active Liberty: A Progressive Alternative to Textualism and Originalism?", may be accessed here.

Over at The Volokh Conspiracy, Professor David Bernstein characterizes the Review as "rather devastating (though unfailing polite)." I'd characterize the "rather devastating" part of the characterization as itself "polite." I wonder whether Justice Breyer is embarrassed?

Both Judge McConnell's Review and Professor Bernstein's post (which features a special guest appearance in the comments by Judge McConnell himself) are well worth reading.

Update: Anyone interested in the subject should also not miss Professor Ilya Somin's Review of Justice Breyer's book in the Northwestern University Law Review. This link will take you to Professor Somin's blog entry at The Volokh Conspiracy, which in turn provides a link to his Review.