Judge Breyer, off the bench, sounds the alarm about the direction of the Supreme Court

Judge Stephen G. Breyer’s Supreme Court chambers aren’t as grand as the rooms he occupied before retiring in 2022, but they’re still quite nice. As before, they have a working fireplace, which was crackling when I visited him on a temperate afternoon in late February to talk about his new book.

In previous interviews, Judge Breyer could be opaque and opaque. This time he was direct. He said he planned to sound the alarm about the Supreme Court’s course of action.

Something important is happening, he said. The court has taken a wrong turn, he said, and it is not too late to turn back.

The book ‘Reading the Constitution: why I chose pragmatism’, Not Textualism’ will be published on March 26, the day the Supreme Court hears its next major abortion case, over access to pills used to end pregnancies.

The book pays a lot of attention to it Dobbs v. Jackson Women’s Health Organization, the 2022 decision that abolished the constitutional right to abortion. Judge Breyer, in dissent, wrote that the decision was stunningly naive because he said it would bring the issue of abortion back into the political process.

“The Dobbs majority’s hope that the Legislature, not the court, will decide the abortion issue will not come to fruition,” he wrote.

During the interview he was more forceful. There are too many questions, he said. “Are they really going to allow women to die on the table because they won’t allow an abortion that would save her life? I mean, really, no one would do that. And they wouldn’t do that. And there will be dozens of questions like this.”

The book is a sustained critique of the current court’s approach to the law, an approach which, in his view, fetishizes the texts of statutes and the Constitution, reading them with a blank slate without common sense understanding their purpose and consequences to appreciate.

Without naming names, he appeared to call on the three members of the court appointed by President Donald J. Trump — Justices Neil M. Gorsuch, Brett M. Kavanaugh and Amy Coney Barrett — to reconsider how they approach the role.

“Recently,” he wrote, “major cases have come before the court, while several new judges have spent only two or three years on the court. Major changes take time, and there are still many years for the newly appointed judges to decide whether they want to build the law using only textualism and originalism.”

He added that “they may be concerned about declining confidence in the court – as evidenced by opinion polls.”

Textualism is a way of interpreting statutes that focuses on their words, leading to decisions that focus on grammar and punctuation. Originalism attempts to interpret the Constitution as it was understood at the time it was adopted, even though Justice Breyer said in the interview, “half the country was not represented in the political process that led to the document.”

There are three major problems with originality, he wrote in the book.

“First, it requires judges to be historians — a role for which they may not be qualified — to continually search historical sources for the ‘answer’ where often there is none,” he wrote. “Second, it leaves no room for judges to consider the practical consequences of the constitutional rules they propose. 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.”

Judge Breyer did not accuse the judges who use these methods of being political in the sense of partisanship or of acting in bad faith. But he said their approach represented an abdication of the judicial role, one in which they would have to look at a problem from every angle.

In his chamber, he recalled a different era, when three different Republican appointees — Justices Sandra Day O’Connor, David H. Souter and Anthony M. Kennedy — largely shared his basic approach to the law.

“Sandra, David – I mean, those two, I wouldn’t necessarily agree on the outcome in every case, but just the way you approach it.” Judge Breyer said. “And Tony too, to a considerable extent.”

Judge Breyer retired somewhat reluctantly, under pressure from liberals who wanted to ensure that President Biden could appoint his successor and that the conservative supermajority on the court, which currently stands at 6-3, would not become even more lopsided. Judge Ketanji Brown Jackson, former law clerk to Judge Breyer, now occupies his seat.

Judge Breyer, who was appointed by President Bill Clinton in 1994, has returned to Harvard Law School, where he taught before becoming a judge. But he said he missed his old job.

“As a professor you are mainly involved in what people have already decided in the past,” he says. “As a judge you are also interested in that, but what you decide influences the present and the future. And that is difficult. Because you don’t really know how it’s going to work out. You have to do your best there. I like that kind of work.”

He shrugged and seemed to reflect on the passage of time. “What can you do?” he asked. “It’s the human condition.”

Judge Breyer’s critics say his approach gives judges too much freedom to translate their preferences into law. I asked him for an example of a case where the law required him to reach a conclusion that conflicted with his personal views.

“What about all the death penalty cases?” he asked. Although he urged the court a dissent from 2015 In order to reconsider the constitutionality of the death penalty, he did not adopt the practice of some previous judges of issuing a dissenting opinion in every capital case. “That doesn’t mean I approved of it,” he said.

More generally, he added that he hoped his book would reach both a broad and limited audience.

“I’d like people to read it,” he said. “I’d like you to agree with me. So would any author. In fact, I would like the members of this court to read it and say, “Oh, not a bad point. Not a bad point.’ And that’s it.”