I generally like the jurisprudence of Justice Breyer, because I often agree with his views of the law, and really, how could I not like a Supreme Court Justice who used to be a copyright law teaching law professor? But this pithy and obscure concurrence in Gratz v. Bollinger is hardly his finest work:
I concur in the judgment of the Court though I do not join its opinion. I join Justice O’Connor’s opinion except insofar as it joins that of the Court. I join Part I of Justice Ginsburg’s dissenting opinion, but I do not dissent from the Court’s reversal of the District Court’s decision. I agree with Justice Ginsburg that, in implementing the Constitution’s equality instruction, government decisionmakers may properly distinguish between policies of inclusion and exclusion, post, at 4, for the former are more likely to prove consistent with the basic constitutional obligation that the law respect each individual equally, see U.S. Const., Amdt. 14.
–Ann Bartow, via like a fish needs a bicycle…
