Justice Stephen Breyer believes his former colleagues on the Supreme Court are steering the country in the wrong direction, and his forthcoming book, Reading the Constitution: Why I Chose Pragmatism, Not Textualism, is “meant to sound an alarm.”
That’s according to The New York Times, which on Monday published an eye-opening interview with the 85-year-old jurist-turned-Harvard Law professor.
“Something important is going on,” said Breyer, whose book will be released on March 26, the same day the Supreme Court will hear arguments regarding the availability of mifepristone, the so-called abortion pill.
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“There are too many questions,” Breyer told the Times. “Are they really going to allow women to die on the table because they won’t allow an abortion which would save her life? I mean, really, no one would do that. And they wouldn’t do that. And there’ll be dozens of questions like that.”
Reading the Constitution “is a sustained critique of the current court’s approach to the law,” according to the Times, which Breyer reportedly portrays as one that “fetishizes the texts of statutes and the Constitution, reading them woodenly, without a common-sense appreciation of their purpose and consequences.”
Although Breyer does not call them out by name, his book takes aim specifically at the three justices appointed by former President Donald Trump: Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett, pressing them to take a different tack.
“Major changes take time, and there are many years left for the newly appointed justices to decide whether they want to build the law using only textualism and originalism,” Breyer writes, noting “the decline in trust in the court—as shown by public opinion polls.”
Textualism, as the Times points out, interprets statutes based on their words, or “text.” Originalism attempts to interpret the Constitution as the founders would have back in the 1700s, which, according to Breyer, has three main problems.
“First, it requires judges to be historians—a role for which they may not be qualified—constantly searching historical sources for the ‘answer’ where there often isn’t one there,” he writes. “Second, it leaves no room for judges to consider the practical consequences of the constitutional rules they propound. And third, it does not take into account the ways in which our values as a society evolve over time as we learn from the mistakes of our past.”
Breyer, a Clinton appointee generally regarded as a liberal, told the Times that this approach runs counter to his style, which he had in common with old-school Republicans on the court with him. And although they may not have all shared the same worldview, they viewed the law in similar ways, Breyer said. He misses being a judge, he said, but accepts his new station in life.
“What can you do?” he said.
For now, Breyer is hopeful that his book will appeal to legal scholars as well as laypeople, he told the Times.
“I’d love [for] people to read it,” he said. “I’d like for you to agree with me. So would every author. I’d like even to get the members of this court to read it and to say, ‘Oh, not a bad point. Not a bad point.’ And that’s all.”
