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 an argument for judges to adopt a specific approach to legal analysis than it is a plea, a cry into oncoming darkness. Reading his book and interviewing Breyer in front of a sold-out Los Angeles crowd 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.
Retired Supreme Court Justice Stephen Breyer’s new book, “Reading the Constitution,” is a plea, a cry into oncoming darkness.
What is the best way for judges to judge? Under one increasingly popular judicial approach, which has been employed by the majority of the current Supreme Court to upend Roe v. Wade and topple a New York gun restriction, judges must look only at the text of the Constitution (originalism) or a statute (textualism) to determine what it means. For Breyer, that’s the beginning of a judge’s job, not the end of it. Judges, he says, must do more, including looking at the purpose behind the written words, the values that are implicated by those words and the consequences of interpreting those words one way or another. It makes no sense, as the originalists claim, that they must ignore the consequences of their decisions. In fact, as Breyer argues, doing so undermines our lawmakers’ ability to implement modern solutions to modern problems.
Breyer, who was known for an approach to the law that insisted that judges consider the real-world consequences of their decisions, served on the Supreme Court from 1994 until 2022. That’s when Democrats, who had lived through the trauma of Justice Ruth Bader Ginsburg’s dying during Donald Trump’s presidency (she’d resisted calls to retire when Democrats controlled the White House and the Senate) persuaded Breyer to step down. He was replaced by one of his former law clerks, Justice Ketanji Brown Jackson.
Breyer, 85, told me he misses being on the court, but he’s not done arguing for why his approach leads to better judicial decisions. His new book is about just that.
Throughout Tuesday’s event, the crowd was engaged and appreciative, most likely because Breyer was animated, knowledgeable and compelling. The audience warmly applauded a few times throughout the evening when Breyer explained the importance of his approach to judging, but I can’t shake the feeling that it wanted more. People who come out to see a retired justice on a weeknight are bound to follow legal news more than the average person, and my guess is that the hundreds there wanted Breyer’s take on alarming behavior by his former colleagues and their spouses.
Justices Samuel Alito and Clarence Thomas both received expensive gifts from billionaires that they didn’t initially disclose.
Alito’s wife, Martha-Ann Alito, flew flags outside their homes that could be understood as supporting those who stormed the Capitol on Jan. 6, 2021. Thomas’ wife, Ginni Thomas, helped plan speeches outside the Capitol on Jan. 6 and supported efforts to overturn the election. Just this week, Alito declined to recuse himself from cases involving Jan. 6, including one arguing that former presidents enjoy immunity from criminal prosecution for official acts. But to expect to hear condemnation from Breyer is to live in fantasyland. Breyer isn’t going to single out members of the court and talk about their behavior. But he will do what he did during our interview: talk about how justices determine whether or not they should recuse themselves. And about the difficulty trying to create a mandatory ethics code that applies to the Supreme Court.
But the heart of our conversation was about his book’s compelling case for why a textualist or originalist approach, which he acknowledges is deeply appealing, is wrong. While it’s supposed to be a simple and predictable form of judging and rein in judges who might simply use their own judgment about what the law should be, Breyer argues convincingly that such an approach is unworkable and that it delivers on neither of those promises.
Telling judges to look only at history “imposes on them a task that they cannot accomplish,” Breyer writes, because “judges are not historians.” Second, this approach undermines democratically elected lawmakers’ ability to “create modern solutions to modern problems.” It should go without saying that gun violence in the country is a public health crisis. It should also go without saying that interpreting our Constitution in a way that places a stranglehold on lawmakers’ ability to address that crisis is a problem. Third, by freezing the meaning of the Constitution at the moment when 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 mistakes of our past.”
No book about the failings 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 14th Amendment’s due process clause includes reproductive choice. For almost 50 years, starting in 1973, the court said it does. Then, in 2022, employing an originalist interpretation of the Constitution, the court said it doesn’t.
Telling judges to look only at history “imposes on them a task that they cannot accomplish,” Breyer writes, because “judges are not historians.” Breyer’s discussion of Dobbs focuses on the doctrine of stare decisis (“to stand by things decided”) which is meant to strongly encourage judges to adhere to precedent (past decisions) whenever possible. The idea is that stare decisis promotes predictability, stability and the ability of people to rely on legal decisions. The doctrine is also supposed to shout to the world that legal decisions and the development of the law aren’t based on the whims and personal predilections of judges. But, as Breyer said Tuesday night, when justices employ an originalism interpretation of the Constitution to overturn precedent, they are using their discretion to determine which past decisions are bad enough to overrule. Alito, who authored the Dobbs decision, said it was OK to overturn Roe v. Wade because it was “egregiously wrong.” Breyer says “egregiously wrong” isn’t a discernible standard for future judges to use in deciding whether to overturn past decisions. Separate from his 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 legislature’s will helps implement the public’s will, thereby furthering the Constitution’s democratic purpose.” Textualism, he says, does neither because it could lead to an interpretation of a statute that wasn’t intended by our elected lawmakers. By confining their analysis to only the words of a statute and ignoring things like the legislative history behind it, textualists can undermine the legislature’s will. As Breyer writes, “Congress cannot write statutes that precisely address every possible application of each phrase in all circumstances.” And we shouldn’t ask it to. It’s only textualists who demand this superhuman level of precision. For Breyer, textualism and originalism represent a painter’s painting “with only half a palette.” When it comes to statutes, it makes no sense to ignore a statute’s “purposes and the consequences to which a particular interpretation will likely lead.” Legislative history, and what a “reasonable legislator” might understand a statute to mean, ought to play a role. When it comes to statutes and the Constitution, Breyer looks at a “phrase in light of the values that underlie them.” 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, it makes little sense to stubbornly insist on using only pliers (originalism) when a wrench (pragmatism) will do a better job. Breyer delivered his message with urgency. He is (politely) screaming at us to realize the folly of a textualist and originalist approach to the law. While the book is written in understated and academic prose, in person, Breyer delivered his message with urgency. He is (politely) screaming at us to realize the folly of a textualist and originalist approach to the law. In our nation’s history, there have been only 112 Supreme Court justices. One of them is pleading with us to understand his perspective. We should listen before we allow a wrongheaded judicial approach that has already caused immeasurable harm to subvert our governing document.
Jessica Levinson is a Loyola Law School professor and MS NOW columnist. 
