Sounds a Warning

A Supreme Court Justice Sounds a Warning

Former Supreme Court Justice Stephen Breyer says in a new book and interview that conservative justices’ approach can’t serve the country and is doomed to fail.

By ANKUSH KHARDORI

When Justice Stephen Breyer stepped down from the Supreme Court in 2022, he left the court with a record of accomplishment — but a legal approach that has been battered.

With former President Donald Trump’s three appointees on the bench, the court was firmly in the hands of conservative justices whose theories of constitutional and statutory interpretation differed fundamentally from that of the liberal Breyer. Their methods have already upended American law in recent years in a variety of areas, including, most notably, abortion — a subject to which the court will return on Tuesday, when it hears arguments over the availability of the abortion pill mifepristone.

In a new book that comes out on the day of the argument and in an interview with POLITICO Magazine, Breyer hits hard at the approach of his conservative former colleagues and sounds a public alarm.

If the court continues to deploy their methods of interpretation, Breyer told me, “We will have a Constitution that no one wants.” It’s a remarkable statement from a former Supreme Court justice.

The conflict between the left and right on the court is virtually impossible to bridge. Conservative justices broadly favor a theory of constitutional interpretation known as “originalism,” which purports to interpret the Constitution in accordance with the public meaning of the text when enacted, and a theory of statutory interpretation known as “textualism,” which prioritizes the text over considerations like congressional purpose and practical consequences when interpreting laws passed by Congress. Liberal justices like Breyer had long embraced theories that were flexible in nature — that allowed judges to account for a variety of inputs when answering hard legal questions.

For Breyer, the problem with conservatives’ approach goes beyond the desirability of specific outcomes in areas like abortion, affirmative action or executive power — areas in which the conservative majority has already significantly changed constitutional law. Breyer argues that the conservatives’ theories are inherently fraught, regressive and anti-democratic, and that they are just as prone to mischief and misuse as the more flexible and expansive theories that conservative judges reject.

“If you think it’s going to be simpler,” he said of their approach, “I have a bridge in New York City I’d like to sell you.”

We talked at length about these and other issues, including the still-ongoing fallout from the court’s decision to overturn Roe v. Wade, the court’s seriously diminished public standing, and whether American democracy is in crisis.

This interview has been edited for length and clarity.

Your book provides a sustained critique of originalism and textualism, which now seem to be the prevailing methods of constitutional and statutory interpretation on the court. You warn that these methods “will not help achieve the goals of those who write statutes or those who wrote and adopted the Constitution.”

Who did you write this book for?

I wrote the book for lawyers who are interested and people who aren’t lawyers. Lots of people, if you read the papers, think that the court is reaching decisions they don’t like. Others do like them, but many do not. And then they blame politics, and they say the court is political.

That is not my view. Perhaps their candidacy was supported by people who have political views, but what they were supporting was the nomination and election or appointment of a judge who would think this is the right way to go about a deciding constitutional or statutory case. And that right way has more and more become a kind of literalism — a kind of textualism, a kind of originalism.

[Antonin] Scalia said that consisted of looking for meaning in the text: Ascribe to the text the meaning that it has borne from its inception, and reject judicial speculation about the drafters’ extra-textually derived purposes, the desirability of the fair readings, the anticipated consequences. In other words, don’t look at consequences. Don’t look at purposes. Look at text.

Now, that’s a very seductive theory. Why? Because it makes two important promises. Promise one is that the job even in the Supreme Court will be simpler, and there will be a single answer. Second, the promise is that the judges will not be able to substitute — or less able to substitute — their own views of what is good for the law.

I’m trying in this book to show the reader something. I am not writing as a professor. I am not writing as an academic or scholar. I’m writing as a practicing judge, and I’ve had a different experience than they’ve had. I want to show them what it is like to try to interpret words in the Constitution, words in the statutes, according to either the textualist theory, where we just look at the words, or use a more traditional method.

The more traditional method being — yes, of course, start with the words. If the word in the statute is “carrot,” that does not mean “fish.” But go on. Why did someone write those words? What was the purpose? What are the consequences [of a proposed interpretation]? Will they further that purpose? And [are the values] consistent with the values that are written — democracy, human rights — into our own constitution?

As you mentioned, the promise of originalism is very seductive. It offers the appearance of a democratically legitimate, empirically grounded method for answering hard constitutional questions. If we’re trying to figure out what a constitutional provision means, why not consult the people who wrote it, and the people who were affected by it at the time?

You have a very stark warning for people who may be drawn to this notion. You describe originalism as inherently “regressive” — writing that it “will not permit modern solutions to modern problems” and that it “consigns us to a set of views and values that predominated during a period when many groups of people today were not equal citizens.”

When the founders were thinking about and writing the words of the Constitution and protecting certain basic rights in the Constitution, women were not really part of the political process. They didn’t have a right to vote, and there was slavery, and the slaves weren’t part of [the political process either].

In the 1860s, after the Civil War, they wrote words designed to protect some people, but the theory of who is part of this community — America, which precedes through democratic means — was quite different then than it is now.

And to say, “What happened then, what people thought then, what the reasonable person thought those words meant then” — well, that will overlook lots of changes designed to further the value of protecting basic civil rights, because the world has changed.

We used to have this argument [in front of students] a lot —Scalia and I — and we were good friends. They saw that we liked each other. I would say, “Nino, the world has changed. George Washington didn’t know about the internet.” And Nino would say, “I knew that. Good point.”

And then he would say that this method — what I think of as traditional, I think involves purposes, consequences, values and sometimes much more — he’d say, “It’s too complicated. Maybe you’re the only one who can do it.”

And I would say to him: “Yes, but we if we adopt your method, your method of interpreting the Constitution, or the statutes, we will have a Constitution that no one wants.” Because the world does change, not necessarily so much in terms of values, but certainly in terms of the facts to which those values are applied. And that I think is the real argument — taking very seriously what they want, and saying — through example, not through a theory that a law professor has made up, but through example — showing that this textualism or this originalism just won’t work.

The majority thought in Dobbs there would be fewer cases — we will turn the abortion matter over to the states, and they will legislate or Congress will legislate and it won’t be decided by the courts. That’s what they wrote. That’s what they thought.

But Tuesday, there will be cases on abortion in the Supreme Court. Many states have many different abortion laws now, and I suspect that many of them will be decided in the court where the words will matter, where it will be more complicated than ever, and if you think it’s going to be simpler, I have a bridge in New York City I’d like to sell you.

I thought it was very fitting that the first case you discussed at length in the book was FDA v. Brown and Williamson, which is a seminal case in the area of statutory interpretation, but also administrative law, which, of course, is one of your longtime areas of interest and expertise.

Can you talk a bit about how you think originalists and textualists generally approach the administrative state and the institutional authority of federal agencies? Where do you think they get it right or wrong?

Well, if we’re talking about the administrative state, we’re really talking about a major change that occurred in the way the Supreme Court approached cases in the New Deal. Before the New Deal, there was a tendency to read the Constitution as emphasizing the protection of property and protecting contract, and those were important — but not protecting wages, and not protecting hours of work. There was a long history of the cases then, and the New Deal changed it.

Power flowed to the administrative agencies, and there was a tendency to allow Congress greater leeway in trying to pass those laws that would help [implement] the New Deal.

Now, why? I’m interested in that because I want to make a point. And the point that I want to make is that judges are not deciding things on the basis of politics. Very slightly, sometimes, but that isn’t the point.

Well, what are they doing? Paul Freund, who was a great law professor, put it this way: He said no judge — no decent judge — will decide a case on the basis of the political temperature of the day, but all judges are influenced by the climate of the era.

And in the early 1900s, we’d had a climate where the growth and prosperity of the United States — through new inventions, through new methods of finance — had been extraordinary. We changed from one of the poorest to one of the richest countries in the world. And the court thought that laissez-faire economics — and property protection, and the protection of contracts — had a lot to do with that, so it isn’t too surprising that they emphasized those things.

But by the time of the New Deal, no one — or hardly anyone — thought that laissez-faire economics alone would solve the problems facing the country, which had 24 percent unemployment, which had a terrible depression, where people were willing to give up on democracy, lots of them.

And the court changed with Franklin D. Roosevelt and the New Deal. It allowed, for example, the legislature to pass laws that would protect wages and that would protect against too many working hours. Things do change.

But a change in the direction of textualism, originalism, isn’t going to do that. It isn’t going to work.

Look at Dobbs. Dobbs is a case where I dissented. Justice Elena Kagan dissented. Justice Sonia Sotomayor. We all wrote one dissent.

We thought it was wrong for many reasons to overturn Roe and to overturn Casey. And we listed a large number of reasons. Now, one of those reasons is that there is a principle called “stare decisis.” And stare decisis means that you are very reluctant as a judge to overturn a case that has been decided in the past. Not “never,” but very rarely. That keeps stability in the law.

Alright, Mr. Originalist. Now tell me, what cases are you going to overrule? Are you going to overrule all cases that do not use your originalist method? If so, you will overrule virtually every case in the Supreme Court, because very few use that method.

“No,” you tell me you won’t do that.

Well, which ones will you overrule? Those that do not use the textualist or originalist method and also are very, very wrong?

“You’re coming closer.”

Which ones are they?

Now the reason I ask that question is: Who’s going to decide — that judge who wants to overrule it? And how will he decide? Textualism won’t tell him. Originalism won’t tell him. He will have to think to himself, “Is this egregiously wrong?”

Now, what have I just done? I’ve created room for the judge to substitute his own views of what is egregiously wrong — or what is really wrong or what is wrong and what is right — for the law. Exactly the thing that he adopted textualism [to avoid] — because he thought the pragmatists, the traditionalists do that. Well, if they can do that, so can he, because textualism allows exactly the same thing.

So, on the two promises — clarity, simplicity, definiteness, and on the other hand, keeping the judges from substituting their own views for what is the law — textualism is just as bad. Those promises are broken. And worse than that, we go back to a system where the values in the Constitution — or the purposes of new laws — will have a much harder time taking effect.

You argue at length in the book that originalists and textualists have no real answer to the question of how they are prepared to apply stare decisis — as you say, that they seem to have an approach that allows them to substitute their own view for that of other bodies.

I think that there’s a parallel in their handling of delegation to administrative agencies and the decisions of those administrative agencies. There seems to be a fairly serious vein of skepticism among these judges about the experience and expertise of these agencies, including agencies like the FDA. What do you make of that?

I think that the question of how much power federal agencies ought to have and how much they ought to be listened to — is not really a textualist or originalist question.

The words in the Constitution that are used to refer to this are normally the word “legislative” in Article One, “executive” in Article Two, “judicial” in Article Three. Those words do not explain themselves, and I’m not sure the textualists think that they do. Rather, they’re thinking of a variety of reasons, perhaps, of why there should be less power centralized in the agency or more, and that is a big question.

Let’s talk a bit about the actual use of history by originalists. Your book focuses on two well-known cases from your last term on the court in which you and the other dissenters had very sharp disputes with the originalists in the majority — Bruen, which held that the Second Amendment guarantees the right to carry a pistol in public, and Dobbs, which overruled Roe v. Wade and held that there is no federal constitutional right to an abortion.

In both of those cases, there were very serious arguments about the historical records and, in particular, about whether those records actually supported the majority’s description of American law and society at the time of the nation’s founding. You and your colleagues in the minority argued that both of those cases should have been decided differently even under the originalists’ methodology.

Now, when people see and hear that, I think it’s tempting for them to think that originalism is perhaps just a stalking horse for the policy preferences of political conservatives in American society, since they’re already skeptical of government power and different forms of political, social and cultural progress. How would you respond?

I have no doubt that many of the people who read the cases and see something like you say [reacted that way]. But that is not a judicial reaction.

The judicial reaction, by and large, and I admit nothing is perfect there, but in my experiences, they try to get the case right. And they use their approach not as a stalking horse; they use it because they think they’re right.

I think we will get further by understanding and presuming good faith on the other side and discussing it on the merits. I think we will get much further toward a workable and practical judicial system that implements the Constitution’s basic values — democracy, human rights, a degree of equality, rule of law, etc. — and the purposes that Congress is trying to achieve in statutes by taking these arguments on the merits and dealing with them, than it is by presuming bad faith on the part of the people that you disagree with.

You write that the court “needs public support,” and you argue that originalists “will find it difficult to maintain informed support” for their approach.

How do you think we should determine whether the court has public support? And do you think they have it now?

On public support, I’m making a rather abstract argument — but I think it’s an important argument.

What I worry is this: Over time, if I’m right, and I think I am, about how originalism and how textualism will work, they will move — as you said at the beginning — they will move the interpretation of statutes away from the direction of trying to help people. They will move the law away from the direction of trying to produce a society where 340 or 330 or 320 million people of every race, every religion, every point of view, can live together more peacefully and productively.

With guns, we will be looking up the meaning of [medieval terms]. We’ll be looking at those, and we will not be allowed to look at what I think is a rather salient fact: There are 400 million guns in the United States. Should you not be able to take account that we are number one in guns in the world?

That will move us away from the Constitution’s basic values. And if we are moved away to that degree, people will instinctively have less reason to follow cases they don’t like, which is called the rule of law.

The chief justice of Ghana, when she asked me if she wants more civil rights in Ghana, she said, why do people do what you say on the court, as a judge?

If you don’t like where we are— you don’t like Bush v. Gore. I dissented in Bush v. Gore. Well, you might think, “Let’s have a few riots. Let’s have a few stones thrown.”

Really? Turn on the television set, and see how things work in countries that decide their disputes that way, and I think maybe you won’t want it.

Contrary to popular belief, of our 320 million people, 319 million are not lawyers. They’re the ones that have to be convinced.

That requires continuity, continuous doing, because you’re asking them to accept something that sometimes they don’t like. And it’s not until you do that successfully that you have a rule of law.

And why have it? There I rather like what my favorite author, Albert Camus, said about World War II, and he talked about a plague in Algeria, but he was really talking about the Nazis in France. And what he says about that plague — he says the plague germ … It never dies. It lurks. It lurks in the hallways. It lurks in the attics. It lurks in the basement. It lurks one day, to emerge. And for the education of mankind, it once again sends its rats into a once-happy city.

The rule of law is one weapon — over many thousands of years — that people have developed to fight that plague germ that lurks in every human being.

And boy, we have seen it. We have seen it recently. And we have seen it in ways that convinced us evermore that we have to use every weapon we have, and certainly a rule of law is an important weapon in that battle.

Do you see how I’m thinking abstractly? But I think there’s considerable realism in that.

Let me turn to what is admittedly a very crude measure of support — public approval, according to public opinion polls.

The court’s public approval has been stuck near historic lows for two-and-a-half years now. We did a poll recently on a very high-profile pending case before the court, and I was struck by the results. Less than a quarter of the respondents said that they trust the Supreme Court to issue a fair and nonpartisan ruling on the issue.

The issue was whether Donald Trump should be absolutely immune from federal prosecution in the Jan. 6 case pending in Washington, D.C. But I found the results very disturbing. I don’t understand how this is sustainable. It seems to me like the mood of the public — or at least a sizable contingent of the American public — is deeply concerned with the trajectory of the court.

The most I can contribute to that — now that I have retired and I’ve thought about this — is to write this book on why these traditional methods [of interpretation] will work better. That doesn’t promise to end every problem, but I think it’s important.

I just wish that people who are not lawyers might read it. Of course, every author would like that. But read it and see how experience — not a theory at a law school — but experience has led me to think that this is an important problem in the area that you’re talking about.

Your book argues that originalism and textualism may eventually produce their own demise — that over time it will become apparent, as you write, that “strict versions of textualism and originalism simply will not work.”

I find this intriguing because it’s a sort of theory of natural or organic decline, but as you acknowledge, there’s no way to predict the future with certainty, and even if you’re right, there’s no way to know how long that transition would take. For many people, particularly after Dobbs, their concerns about the jurisprudence on the court are more urgent and worthy of more aggressive solutions now.

In the past, you’ve expressed openness to the idea of term limits for Supreme Court justices, but you’ve warned against adding more seats to the Supreme Court. What is your current thinking about those sorts of reforms?

The ones I’ve talked about for many years are term limits. Many other countries do that. Canada does; England does. And it would have to be long, because you don’t want the person on the court thinking about what his next job is going to be after retiring, but it would alleviate the pressure — which is personal and comes from the condition that we all have, which is called mortality — when you decide what’s the right moment and so forth. Those are difficult personal decisions.

And so I haven’t been against that. I haven’t been against the notion of having a long fixed term for a Supreme Court justice. Whether that’s a major fix is not clear to me, because the major fix — and what I mean to be driving at here — is exactly what [John] Adams and others thought, that the only way is a government by the people, etc. It is a government of democracy and protection of human rights and so forth. Will it work? We are an experiment.

A lot of Americans right now say that they are worried about the future of American democracy. Are you?

Senator [Ted] Kennedy used to say the country swings — first one way, then the other. Winston Churchill used to say the country always does the right thing after trying everything else.

We go back and forth, and we’ve survived all kinds of things. We have survived the Civil War. We did survive Vietnam.

Look at Bobby Kennedy talking in Indianapolis the day that Martin Luther King Jr. was assassinated — talking about Aeschylus, talking about the pain, talking about why we must act as one nation and stick together.

Only a few years before his brother had been assassinated, and only a few weeks after, he would be assassinated. A number of school students at Kent State were killed [during that era], Watts had been burned, and people were talking about burning parts of Washington.

I had started teaching [then], and it was a very difficult era. Very difficult indeed. And we survived.

And of course the Civil War was incredible. Very bad. And slavery. What do you think of that? And Jim Crow. Read W.E.B. DuBois.

You will see this country has been through a lot. But, as I learned in the fifth grade, that people in this country are pretty good at getting their act together and helping each other. And we saw that up in Cambridge during Covid, when groups got together to see if old people had enough to eat and if they were all right. And that happened, not just in Cambridge, but all over the country.

There are pros and cons in America, and so far, we have risen to the occasion. So naturally, on balance, I’m optimistic.