More on Justice Breyer’s Citation to Book Not in the Record

The other day I noted that Justice Breyer cited to unavailable scholarship in his McCutcheon dissent. I updated the post to reflect that Derek Muller had made those points when the opinion was released, something I had missed.  Here’s another reference I missed, from Collins and Skover’s introduction to the SCOTUSBlog McCutcheon symposium:

Reliance on secondary sources

While James Madison and The Federalist Papers were quoted by the dissent, neither the plurality opinion nor Justice Thomas’s concurrence found the need to do so. Then again, the plurality did quote from an Edmund Burke speech, though it otherwise did not cite to any other secondary sources apart from references to news articles.  Justice Thomas did not reference any secondary scholarly authorities, not even any originalist sources. In his dissenting opinion, Justice Breyer did find some use for secondary sources beyond the two mentioned.  Those sources ranged from Jean Jacques Rousseau’s An Inquiry Into the Nature of the Social Contract (1791) to James Wilson’sCommentaries on the Constitution of the United States of America (1792) to precise page citations to Robert Post’s forthcoming book Citizens Divided: Campaign Financed Reform and the Constitution. The latter citation may be a first in Supreme Court history, especially since we were unable to find any reference to it in any of the briefs filed with Court or in any text of the forthcoming book (due out in June) on the Internet.  Another possible first:  Breyer’s reference to the Oxford Dictionary of Humorous Quotations. Finally, all in all, none of the opinions found any value in relying on any law review articles.

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