This essay is adapted from my Robert B. Silvers Lecture at the New York Public Library earlier this year, which was drawn from my Reading the Constitution: Why I Chose Pragmatism, Not Textualism (Simon and Schuster, 2024). The lecture and essay, like the book on which they are based, contain no revelations of private information, including within the Court or at conference. The descriptions and analyses refer to cases, legal opinions, articles, and books that are publicly available or to thoughts and analyses that are my own.
For more than forty years I served as a federal judge—about fourteen years on a court of appeals and twenty-eight years as an associate justice of the Supreme Court. Judges of these courts often interpret words that appear in statutes or the Constitution.
When I explain to a group of middle school students what that job is like, I use an example I found in a French newspaper. A high school biology teacher was traveling on a train from Nantes to Paris. She had with her twenty live snails in a wicker basket. The train conductor told her, “You must buy a ticket for the snails.” “That’s ridiculous,” the teacher replied. “Well,” said the conductor, “read the fare rules. They say, ‘Passengers cannot bring animals on the train except in a basket, in which case they must buy a half-fare ticket for the animals.’” “But,” protested the teacher, “it means dogs or cats or perhaps rabbits, but not snails.” “Doesn’t it say ‘animals,’” said the conductor, “and isn’t a snail an animal?”
At this point, I ask the class: “Who is right?” “What about mosquitoes?” says one student. “Why would they want you to pay for snails?” asks another. “But isn’t a snail an animal?” says a third. I add, “There you have the interpretive job of an appellate judge. How do we find the ‘right’ answer?”
Though few legal cases involve snails, cases involving the meaning of words in statutes or the Constitution—such as “the right…to keep and bear arms”—pose similar questions. How and to whom do these legal words apply?
There has long been what I call a “traditional” approach, embodied in the work of judges like Oliver Wendell Holmes Jr., Benjamin Cardozo, and Louis Brandeis, and professors such as Henry Hart and Albert Sacks. It sees legal interpretation as pragmatic, undogmatic, and adaptive. It sees law as an untidy body of understandings among groups and institutions, inherited from the past and open to change mostly at the edges. It communicates its vision not through the application of any single theory but through detailed study of cases, institutions, history, and above all the human needs that underlie them. Its practice requires dedication, sensitivity, and an awareness of the variety of the human needs and relationships that underlie our legal institutions, which now must help more than 330 million Americans live together peacefully and productively.
Seen in this way, the law requires judges interpreting indefinite or uncertain texts (and virtually all Supreme Court cases involve uncertainty as to a text’s meaning or application) both to examine the words themselves and to recognize the limits of language to convey meaning. When faced with such limits, a practical judge will often ask, What purposes do these words serve? What ends do they seek to further? What mischief do they seek to avoid? As Justice Holmes wrote, a law’s “general purpose is a more important aid to…meaning than any rule which grammar or formal logic may lay down.”
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