In a bold move rare for a retired justice, The Washington Examiner reported that former Supreme Court Justice Stephen Breyer challenges the lens through which his former colleagues view the Constitution.
With a new book critiquing textualism and originalism, Breyer diverges sharply from current Supreme Court interpretive strategies.
His vocal criticisms highlight a growing divide between differing judicial philosophies on America's highest court.
After stepping down from the Supreme Court in 2022, Stephen Breyer has taken a step that many in his position shy away from public criticism of the methods through which current justices interpret the Constitution. His forthcoming publication, "Reading the Constitution: Why I Chose Pragmatism, Not Textualism," aims to shed light on why he believes textualism and originalism—favored by many Republican-appointed justices—are flawed approaches.
Breyer's concerns are not just theoretical; they are rooted in the recent dynamics within the Supreme Court itself. He points out that several major cases have been decided by justices relatively new to the court. He suggests that the full impacts of textualism and originalism may take years to unfold as these justices grow into their roles.
In his critique, Breyer outlines three primary concerns with the originalist approach to constitutional interpretation. First, he argues that it transforms justices into historians, a role for which they might not be well-suited. Second, this method ignores the practical consequences of rulings. Lastly, it fails to acknowledge how societal values evolve. These points form the crux of Breyer's argument for a more pragmatic approach to reading the Constitution.
Comparing his judicial philosophy to that of former colleagues such as Sandra Day O'Connor, David Souter, and Anthony Kennedy, Breyer laments a perceptible shift in the court's ethos. His book underscores a divergence from the collaborative, pragmatic approach of past Republican-appointed justices to a more rigid interpretation framework.
One particularly contentious issue Breyer highlights is the Dobbs v. Jackson Women's Health Organization ruling. His objections to this decision and its implications on abortion rights reveal a profound worry about the direction in which the Supreme Court is heading under the influence of textualism and originalism.
Breyer's displeasure with the Dobbs decision is palpable. He questions the court's willingness to potentially risk women's lives due to restrictive abortion rulings. His rhetorical inquiries aim to provoke thought on the practical implications of High Court decisions.
In an interview with CNN's Chris Wallace last September, Breyer opened up about his efforts to dissuade his colleagues from overturning Roe v. Wade. His frustration and disappointment were evident as he discussed the fallout from this landmark decision being overturned.
Looking ahead, Breyer's book not only critiques but also poses questions about the future of judicial decision-making. He speculates on whether newer justices will continue to rely solely on originalism and textualism or if they will consider adapting their methods over time.
Throughout his book, Breyer emphasizes the importance of considering the practical consequences of constitutional rules. He advocates for a judiciary that recognizes the dynamic and evolving nature of societal values.
Breyer's reflections on his time at the Supreme Court, coupled with his concerns about its current trajectory, paint a picture of a justice deeply committed to a balanced and pragmatic interpretation of the Constitution. His warnings about the pitfalls of adhering too strictly to textualism and originalism serve as a somber reminder of the complexities of constitutional law.
In conclusion, Stephen Breyer's forthright criticism of textualism and originalism marks a pivotal moment in the discourse on constitutional interpretation. Through his upcoming book, he outlines his arguments for pragmatism over these methods, highlighting the potential dangers of disregarding societal evolution and practical outcomes in judicial decisions. His comparison with past justices and concerns over recent Supreme Court rulings, particularly regarding abortion rights, underscore the deep divisions within the court and the lasting impact these interpretive approaches may have on American law and society.