SIDEBAR
Justice Breyer, Off the Bench, Sounds an Alarm Over the Supreme Court’s Direction
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.
U.S. Supreme Court News and Analysis
- Immigration Law: Texas was once again prevented from enforcing a strict new law that gives local police agencies the power to arrest migrants who cross the border without authorization, hours after the Supreme Court allowed it to temporarily go into effect.
- Trump’s Immunity: Former President Donald Trump urged the Supreme Court to rule that he is absolutely immune from criminal charges stemming from his attempts to subvert the 2020 election.
- No-Fly List Case: The justices unanimously ruled in favor of a Muslim man who said he had been put on the no-fly list in retaliation for refusing to become a government informant.
- Misinformation: The Supreme Court seemed wary of a bid by two Republican-led states to limit the Biden administration’s interactions with social media companies. The states argued that officials had violated the First Amendment by urging platforms to remove content that the government considered misinformation.
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.
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