Retired Supreme Court Justice Stephen Breyernew book, “Reading the Constitution,” which rejects the originalist approach of the court’s conservative majority, is less an argument for the justices to adopt a specific approach to legal analysis than it is a plea, a cry to the coming darkness. Reading your book and interviewing Breyer in front of a packed crowd in Los Angeles on Tuesday night convinced me that the question of how judges analyze the Constitution and statutes is perhaps the most pressing legal issue of our time.
What is the best way for judges to rule? Under an increasingly popular judicial approach, which has been used by the majority of the current Supreme Court to overturn Roe v. It is overturn a gun restriction in New York, judges must look only to the text of the Constitution (originalism) or a statute (textualism) to determine what it means. For Breyer, this is the beginning of a judge’s work, not the end of it. Judges, he says, must do more, including looking at the purpose behind written words, the values that are implied by those words, and the consequences of interpreting those words one way or another. It makes no sense, as originalists claim, that they should ignore the consequences of their decisions. In fact, as Breyer argues, doing so undermines the ability of our legislators to implement modern solutions to modern problems.
Breyer, who was known for an approach to the law which insisted that judges consider the real consequences of their decisions, served on the Supreme Court from 1994 to 2022. That was when the Democrats, who lived through the trauma of Justice Ruth Bader Ginsburg died during Donald Trump’s presidency (she resisted calls to retire when Democrats controlled the White House and Senate) persuaded Breyer to resign. He was replaced by one of his former legal staff Judge Ketanji Brown Jackson.
Breyer, 85, told me he misses being in court, but he’s not finished arguing why his approach leads to better judicial decisions. His new book is exactly about that.
Throughout Tuesday’s event, the crowd was engaged and appreciative, likely because Breyer was excited, knowledgeable and convincing. The audience applauded warmly a few times throughout the night as Breyer explained the importance of his approach to judging, but I can’t shake the feeling that he wanted more. People who go to see a retired judge during the week are bound to follow more legal news than the average person, and my guess is that the hundreds of people who were in attendance wanted Breyer’s opinion on the alarming behavior of his former colleagues and their wives.
Justices Samuel Alito and Clarence Thomas received expensive gifts from billionaires which they did not disclose initially.
Alito’s wife, Martha-Ann Alito, flew flags outside their homes this could be understood as support for those who stormed the Capitol on January 6, 2021. Thomas’ wife, Ginni Thomas, helped plan speeches outside the Capitol on January 6 and supported efforts to overturn the election. Later this week, Alito refused to refuse of cases involving January 6, including one that argued that former presidents enjoyed immunity from criminal prosecution for official acts. But to wait to hear Breyer’s condemnation is to live in fantasyland. Breyer will not single out members of the court and talk about their behavior. But he’ll do what he did during our interview: he’ll talk about how judges determine whether or not to recuse themselves. And about the difficulty of trying to create a mandatory code of ethics that applies to the Federal Supreme Court.
But the heart of our conversation was about his book’s compelling argument for why a textualist or originalist approach, which he acknowledges is deeply attractive, is wrong. Although it should be a simple and predictable way to judge and control judges who can simply use their own judgment about what the law should be, Breyer convincingly argues that such an approach is impractical and delivers none of these promises.
Telling judges to look only to history “imposes on them a task they cannot fulfill,” Breyer writes, because “judges are not historians.” Second, this approach undermines the ability of democratically elected legislators to “create modern solutions to modern problems.” It should go without saying Gun violence The country is a public health crisis. It should also go without saying that interpreting our Constitution in a way that restricts lawmakers’ ability to address this crisis is a problem. Third, by freezing the meaning of the Constitution at the time it was written, originalism prevents judges from “taking into account the ways in which our values as a society evolve over time as we learn from the mistakes of our past.” .
No book on the failures of originalism would be complete without a discussion of Dobbs v. Jackson Women’s Health Organization, which erased the right to abortion from the Constitution. Constitutionally, the question is whether the word “freedom” in Due Process Clause of the 14th Amendment includes reproductive choice. For nearly 50 years, starting in 1973, the court said yes. Then, in 2022, resorting to an originalist interpretation of the Constitution, the court said no.
Breyer’s discussion of Dobbs focuses on the doctrine of stare decisis (“keep things decided”), which aims to strongly encourage judges to adhere to precedents (previous decisions) whenever possible. The idea is that stare decisis promotes predictability, stability and people’s ability to trust legal decisions. The doctrine should also shout to the world that legal decisions and the development of the law are not based on the personal whims and predilections of judges. But as Breyer said Tuesday night, when judges employ an originalist interpretation of the Constitution to overturn precedents, they are using their discretion to determine which past decisions are bad enough to be overturned. Alito, author of the Dobbs decision, said there was no problem overturning Roe v. Wade. Wade because he was “blatantly wrong.” Breyer says “extremely wrong” is not a discernible standard for future judges to use when deciding whether or not to overturn past rulings.
Regardless of your concerns about how an originalist approach undermines the Constitution, Breyer also illustrates why textualism undermines democracy. He argues that “an interpretation of a statute that tends to implement the will of the legislature helps to implement the will of the public, thereby promoting the democratic purpose of the Constitution.” Textualism, he says, does not do so because it could lead to an interpretation of a statute that was not the intent of our elected legislators. By limiting their analysis to just the words of a statute and ignoring aspects such as the legislative history behind it, textualists can undermine the will of the legislator.
As Breyer writes: “Congress cannot write statutes that precisely address every possible application of every phrase in every circumstance.” And we shouldn’t ask for that. It is only textualists who demand this superhuman level of precision.
For Breyer, textualism and originalism represent the painting of a painter “with only half a palette”. When it comes to statutes, it makes no sense to ignore the “objectives and consequences to which a particular interpretation is likely to lead” of a statute. Legislative history and what a “reasonable legislator” might understand a law to mean must play a role. When it comes to statutes and the Constitution, Breyer analyzes a “sentence in light of the values that underlie it.” To do otherwise, he convinced me, would be to look at a toolkit and use only a fraction of it. If you need to loosen a pipe, there is no point in stubbornly insisting on just using pliers (originalism) when a wrench (pragmatism) will do a better job.
Although the book was written in understated, academic prose, in person, Breyer delivered his message with urgency. He is (politely) shouting at us to realize the folly of a textualist, originalist approach to the law.
In the history of our nation, there has only been 112 Supreme Court justices. One of them is begging us to understand his perspective. We should listen before we allow a misguided judicial approach that has already caused immeasurable harm to subvert our governing document.
This article was originally published in MSNBC.com
