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The Last Progressive: Justice Breyer, Heller, and ?Judicial Judgment?

By Alliance Alert

This paper considers Justice Breyer's dissent as a species of progressive jurisprudence. By progressive, I do not mean a political program but rather an approach to how the Supreme Court views its role and its work. Progressive jurisprudence was developed in the shadow of the relative formalism of the classical jurists and forged in the pragmatic philosophical tradition at the turn of the century. Progressive judges eschewed absolutist constitutional claims; their decisions were fact-based, attentive to changing social conditions, and deferential to legislatures. The progressive attitude-- context-specific, non-categorical, expertise-driven, and infused by a common law sensibility--is what Breyer means when he writes in his Heller dissent that answering constitutional questions ?requires judgment.

Full post as published by Constitutionally Correct on January 22, 2009 (boomark / email).