Supreme Court Justice Stephen Breyer’s new book, “Reading the Constitution,” rejects the principled approach of the Supreme Court’s conservative majority, but it’s more of a plea, a cry into the looming darkness, than an argument that justices should adopt a particular approach to legal analysis. Having read his book and interviewed Breyer before a packed crowd in Los Angeles on Tuesday night, I was convinced that the question of how justices analyze the Constitution and statutes is perhaps the most pressing legal issue of our time.
What is the best way for judges to rule? One increasingly popular judicial approach, the approach that the current Supreme Court majority took to overturn Roe v. Wade and overturn New York’s gun laws, is for judges to look only at the words of the Constitution (fundamentalism) or the law (textualism) to determine what it means. For Breyer, that is the beginning, not the end, of a judge’s job. He says judges need to do more, including looking at the purpose behind the written words, the values ​​those words imply, and the consequences of interpreting those words in a certain way. It makes no sense, as fundamentalists argue, that judges must ignore the consequences of their decisions. In fact, as Breyer argues, doing so would undermine lawmakers’ ability to implement modern solutions to modern problems.
Breyer, known for his legal approach that says justices should consider the real-world impact of their decisions, served on the Supreme Court from 1994 to 2022. It was at this point that Democrats, after experiencing the trauma of the death of Justice Ruth Bader Ginsburg during Donald Trump’s presidency (Justice Ginsburg had resisted calls for her retirement when Democrats controlled the White House and the Senate), persuaded Breyer to step down and be replaced by one of his former law clerks, Justice Ketanji Brown Jackson.
Breyer, 85, told me he misses being on the court, but he plans to continue to argue why his approach leads to better judicial decisions, which is what his new book is about.
The audience was attentive and appreciative throughout Tuesday’s event, likely because Breyer was animated, knowledgeable, and persuasive. The audience applauded warmly at several times throughout the evening as Breyer explained the importance of his commitment to the case, but the impression was that they wanted to hear more. People coming to see a retired judge on a weekday evening are likely to follow legal news more than the general public, and my guess is that the hundreds there wanted to hear Breyer’s take on the surprising behavior of a former colleague and his spouse.
Justices Samuel Alito and Clarence Thomas both received large gifts from billionaires that they did not initially disclose.
Alito’s wife, Martha Ann Alito, has flown a flag outside her home that could be perceived as supporting those who stormed the Capitol on January 6, 2021. Thomas’ wife, Ginny Thomas, helped plan a speech in front of the Capitol on January 6 to support efforts to overturn the election results. Just this week, Alito refused to recuse himself from lawsuits related to January 6, including one that argued that former presidents enjoy immunity from criminal prosecution for official conduct. But to expect to hear a denunciation from Breyer is to live in fantasy land. Breyer will not name members of the Supreme Court and talk about their actions. But he will talk about how justices decide whether to recuse themselves, as he did during the interview, and the difficulties of trying to create a mandatory code of ethics that applies to the Supreme Court.
But the crux of our conversation was that his book argues persuasively for why the textualist or originalist approach is wrong and why he finds it so attractive: it would be a simple, predictable form of adjudication that would restrain judges from simply deciding for themselves what the law should be, but Breyer argues persuasively that such an approach is unworkable and fails to deliver on either of its promises.
Telling justices to look only at history “sets them a task they cannot accomplish,” because “judges are not historians,” Breyer wrote. Second, this approach undermines the ability of democratically elected lawmakers to “create modern solutions to modern problems.” It goes without saying that gun violence in this country is a public health crisis. It also goes without saying that interpreting the Constitution in a way that stifles lawmakers’ ability to address that crisis is problematic. Third, by freezing the meaning of the Constitution at the time it was written, fundamentalism prevents judges from “considering the way our values ​​as a society evolve over time, while learning from past mistakes.”
No book on the flaws of fundamentalism would be complete without discussing the case of Dobbs v. Jackson Women’s Health Organization, which struck the right to abortion from the Constitution. Constitutionally, the question was whether the word “liberty” in the Due Process Clause of the 14th Amendment included the right to reproductive choice. For almost 50 years, since 1973, the Court has said it did. Then, in 2022, adopting a fundamentalist interpretation of the Constitution, the Court said it did not.
Breyer’s discussion of Dobbs focuses on the principle of precedential binding (“stand for what has been decided”). This is meant to strongly encourage justices to follow precedent (past decisions) whenever possible. The idea is that precedential binding promotes predictability, stability, and the ability of people to trust legal decisions. This principle is also supposed to shout to the world that legal decisions and developments in law are not based on the whims or personal preferences of justices. However, as Breyer said Tuesday night, when justices use a principled interpretation of the Constitution to overturn precedent, they are exercising their discretion to determine which past decisions are bad enough to overturn. Alito, who wrote the Dobbs decision, said Roe v. Wade could be overturned because it was “terribly wrong.” Breyer said “terribly wrong” is not an identifiable standard that future justices use in deciding whether to overturn past decisions.
Apart from the concern that a principled approach weakens the Constitution, Breyer also explains why literalism weakens democracy. He argues that “interpretations of statutes that tend to carry out the will of the legislature serve the will of the people, thereby promoting the democratic purposes of the Constitution.” According to him, literalism serves neither purpose, since it can lead to interpretations of statutes that were not intended by the elected legislators. By limiting the analysis to the language of the statute alone and ignoring the legislative history behind it, literalists can undermine the will of the legislature.
As Breyer writes, “Congress cannot enact a law that will precisely address every applicability of each phrase in every circumstance.” And we should not require that of Congress. Only a literalist would demand this superhuman level of precision.
For Breyer, textualism and fundamentalism are like paintings by a painter with “only half a palette.” With regard to statutes, it makes no sense to ignore the statute’s “purpose and the likely consequences of a particular interpretation.” Legislative history, and what a “reasonable legislator” would understand the statute to mean, should play a role. With regard to statutes and the Constitution, Breyer considers “phrases in the light of their underlying values.” To do otherwise, he persuaded me, is like looking at a toolkit and using only part of it. If you need to loosen a pipe, it makes little sense to stubbornly insist on using only pliers (fundamentalism) when a wrench (pragmatism) would do the trick.
Though the book is written in spare, academic prose, Breyer delivers his message in person and with a sense of urgency: He is (politely) shouting at us to recognize the folly of a literalist, principled approach to the law.
There have only been 112 Supreme Court Justices in the history of our nation, and one of them is pleading with us to understand his perspective, and we should listen before a misguided judicial approach that has already caused untold damage upends our nation’s governing documents.
This article originally appeared on MSNBC.com.
