America’s long-held democratic principles are under threat by the far right, and yet too many liberals remain reluctant to rebrand and wrap themselves in the Constitution and its amendments. But it’s those texts themselves, and their historical context, that can save the very liberal governance that those documents prescribe—if only the left would learn to embrace and reframe them for the better of the nation. This is an existential struggle, and doing nothing is not an option.
-Simon Lazarus in The New Republic
Trump’s “migrant crime” claim has been debunked repeatedly. In New York, for example, “police data indicate that there has been no surge in crime since April 2022, when Gov. Greg Abbott of Texas started sending buses of migrants to New York to protest the federal government’s border policy,” the New York Times reported last month. And “many major categories of crime — including rape, murder and shootings — have decreased, according to an analysis of the New York Police Department’s month-by-month statistics since April 2022.”
Nationwide, “the most common finding across all these different kinds of studies is that immigration to an area is either not associated with crime in that area, or is negatively associated with crime in that area,” criminologist Charis Kubrin told CNN last month. “Meaning more immigration equals less crime.”
Jennifer Rubin in Salon.com
SIDEBAR
In an interview in his chambers and in a new book, the justice, who retired in 2022, discussed Dobbs, originalism and the decline of trust in the court.
Reporting from Washington
Justice Stephen G. Breyer’s Supreme Court chambers are not quite as grand as those he occupied before he retired in 2022, but they are still pretty nice. As before, they include a working fireplace, which was crackling when I went to visit him on a temperate afternoon in late February to talk about his new book.
In earlier interviews, Justice Breyer could be rambling and opaque. This time he was direct. He said he meant to sound an alarm about the direction of the Supreme Court.
“Something important is going on,” 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, on access to pills used to terminate pregnancies.
The book devotes considerable attention to Dobbs v. Jackson Women’s Health Organization, the 2022 decision that eliminated the constitutional right to abortion. Justice Breyer, who had dissented, wrote that the decision was stunningly naïve in saying it was returning the question of abortion to the political process.
“The Dobbs majority’s hope that legislatures and not courts will decide the abortion question will not be realized,” he wrote.
He was more forceful during the interview. “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 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.”
The book is a sustained critique of the current court’s approach to the law, one that he said fetishizes the texts of statutes and the Constitution, reading them woodenly, without a common-sense appreciation of their purpose and consequences.
Without naming names, he seemed 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 justices have spent only two or three years at the court. 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.”
He added that “they may well be concerned about the decline in trust in the court — as shown by public opinion polls.”
Textualism is a way of interpreting statutes that focuses on their words, leading to decisions that turn on grammar and punctuation. Originalism seeks 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 wasn’t represented in the political process that led to the document.”
There are three large problems with originalism, he wrote in the book.
“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 wrote. “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.”
Justice Breyer did not accuse the justices who use those methods of being political in the partisan sense or of acting in bad faith. But he said their approach represented an abdication of the judicial role, one in which they ought to consider a problem from every angle.
