Retired Supreme Court Justice Stephen Breyer’s new book, “Reading the Constitution,” which rejects the originalist approach of the Court’s conservative majority, is less of an argument for the justices to take a specific approach to the legal analysis as a plea, a call to opposition. darkness. Reading his book and interviewing Breyer before a packed house in Los Angeles on Tuesday evening convinced me that the question of how judges analyze the Constitution and statutes is perhaps the most pressing legal question of our era.
What is the best way for judges to judge? In an increasingly popular judicial approach, which was used by the majority of the current Supreme Court to overturn Roe v. Wade and overturn a gun restriction in New York, judges must look only at the text of the Constitution (originalism) or a law (textualism) to determine what it means. For Breyer, this is the beginning of a judge’s work, not the end. Judges, he says, must do more, including examining the purpose behind the written words, the values implied by those words, and the consequences of interpreting them one way or another. It makes no sense, as originalists claim, that they must ignore the consequences of their decisions. In fact, as Breyer argues, it undermines the ability of our legislators to implement modern solutions to modern problems.
Breyer, known for his approach to law requiring judges to consider the concrete consequences of their decisions, served on the Supreme Court from 1994 to 2022. It was during this time that Democrats, who had experienced the trauma of the decision by Justice Ruth Bader Ginsburg. Dying during Donald Trump’s presidency (she had resisted calls to retire when Democrats controlled the White House and Senate) persuaded Breyer to resign. He was replaced by one of his former lawyers, Justice Ketanji Brown Jackson.
Breyer, 85, told me he misses being in the field, but he isn’t done explaining why his approach leads to better judicial decisions. His new book is about exactly that.
Throughout Tuesday’s event, the crowd was engaged and appreciative, likely because Breyer was lively, knowledgeable and convincing. The audience applauded warmly several times throughout the evening when Breyer explained the importance of his approach to judging, but I can’t help but think he wanted more. People who come to see a retired judge on a weeknight are bound to follow legal news more than average, and I suspect that hundreds of people wanted to see Breyer exhibit alarming behavior from his former colleagues and of their wives.
Justices Samuel Alito and Clarence Thomas both received expensive gifts from billionaires that they initially did not disclose.
Alito’s wife, Martha-Ann Alito, waved flags in front of their homes, which could be interpreted 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. Just this week, Alito refused to recuse himself from cases involving Jan. 6, including one arguing that former presidents have immunity from criminal prosecution for official acts. But to expect to hear Breyer condemned is to live in fantasy land. Breyer is not going to single out members of the court and talk about their behavior. But he will do what he did in our interview: 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 would apply to the Supreme Court.
But the heart of our conversation was about his book’s compelling arguments for why a textualist or originalist approach, which he acknowledges is deeply appealing, is misguided. Although it is intended to be a simple and predictable form of judgment and control by judges who could simply use their own judgment about what the law should be, Breyer convincingly argues that such an approach is impractical and that it does not deliver on any of these promises.
Telling judges to look only at history “imposes a task on them that they cannot accomplish,” 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 goes without saying that gun violence in the country constitutes a public health crisis. It also goes without saying that interpreting our Constitution in a way that stifles lawmakers’ ability to resolve this crisis is a problem. Third, by fixing the meaning of the Constitution at the time it was written, originalism prevents judges from taking “into account how our values as a society evolve over time, as we learn from 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 obtain an abortion from the Constitution. Constitutionally, the question is whether the word “liberty” in the due process clause of the 14th Amendment includes reproductive choice. For almost 50 years, starting in 1973, the court said yes. Then, in 2022, employing an originalist interpretation of the Constitution, the court said no.
Breyer’s discussion of Dobbs focuses on the doctrine of stare decisis (“stick to what has been decided”) which is intended to strongly encourage judges to adhere to precedent (past decisions) as much as possible. The idea is that stare decisis promotes predictability, stability and the ability of citizens to rely on legal decisions. The doctrine is also meant to shout to the world that legal decisions and the evolution of the law are not based on the whims and personal preferences of judges. But, as Breyer said Tuesday night, when justices resort to an originalist interpretation of the Constitution to overturn precedent, they are using their discretion to determine which past decisions are bad enough to overturn. Alito, who authored the Dobbs decision, said it was acceptable to overturn Roe v. Wade because it was “extremely false.” Breyer says “horribly wrong” is not a discernible standard that future justices can use to decide whether to overturn past decisions.
In addition to his concerns about how an originalist approach undermines the Constitution, Breyer also illustrates why textualism undermines democracy. He argues that “an interpretation of a law that tends to implement the will of the legislature helps to implement the will of the public, thereby furthering the democratic purpose of the Constitution.” Textualism, he says, does neither, because it could lead to an interpretation of a law that was not intended by our elected legislators. By limiting their analysis to only the terms of a statute and ignoring such things as the legislative history behind it, textualists can undermine the will of the legislature.
As Breyer writes, “Congress cannot write laws that precisely address every possible application of every phrase in every circumstance.” And we shouldn’t ask for it. Only textualists 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 laws, it makes no sense to ignore “the purposes of a law and the consequences to which a particular interpretation is likely to result.” Legislative history and what a “reasonable legislator” might understand a law to be should play a role. When it comes to laws and the Constitution, Breyer examines a “sentence in light of the values that underlie them.” To do otherwise, he convinced me, would be like going through a toolbox and using only a fraction of it. If you need to loosen a pipe, it makes no sense to insist on using only pliers (originalism) when an adjustable wrench (pragmatism) will do a better job.
Although the book is written in restrained, academic prose, Breyer personally delivered his message with urgency. He shouts at us (politely) to realize the folly of a textualist and originalist approach to law.
In the history of our country, there have only been 112 Supreme Court justices. One of them begs us to understand his point of view. We should listen before allowing a flawed judicial approach that has already caused immeasurable harm to overturn our governing document.
This article was originally published on MSNBC.com
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