Textualism, which sees a legal system’s original structure as immortal, is the dominating philosophy on the court today.
But retired Supreme Court Justice Stephen Breyer argues pragmatism, which considers consequences of legal decisions, is the better mindset.
Today, On Point: How former Supreme Court Justice Stephen Breyer ‘reads the constitution.’
Guest
Stephen Breyer, former associate justice of the Supreme Court. Author of “Reading the Constitution: Why I Chose Pragmatism Not Textualism.”
Book Excerpt
Excerpt from “Reading the Constitution: Why I Chose Pragmatism Not Textualism” by Stephen Breyer. Not to be reprinted without permission of the publisher. All rights reserved.
Transcript
Part I
MEGHNA CHAKRABARTI: Retired Supreme Court Justice Stephen Breyer served on the nation’s highest court for 28 years before stepping down in 2022. He’d been nominated by President Bill Clinton back in 1994. And prior to that, he served on the First Circuit Court of Appeals. Today, he joins us to talk about his new book, in which he argues that textualism, or the judicial philosophy of a narrow text-based reading of the Constitution, is turning the judiciary away from decisions best suited for a modern democracy.
Breyer instead advocates for pragmatism, an approach that takes into consideration the impact of a ruling on the people subject to the law. The book is titled, Reading the Constitution: Why I Chose Pragmatism Not Textualism. Justice Breyer, welcome to On Point.
STEPHEN BREYER: Thank you very much for having me.
CHAKRABARTI: So, I will get into the details with you about the differences between pragmatism and textualism in a little bit, but I’m actually curious. First of all, Justice Breyer, why did you decide to write this book on this topic for a broader audience now?
BREYER: I’ve been a judge for 40 years. I’m really from Massachusetts now. I live in Massachusetts. I’ve been there for 40 years, and I wanted people to understand, after 40 years of being like an appellate judge in the Supreme Court where they do appeals, really, what do we do?
What does a judge do? How does he decide cases? How does he or she consider a difficult case and come to a conclusion? Now, I didn’t make up the traditional way of doing it, but I tend to follow that. And I wanted people to understand it, and I think particularly high school students, college students, I want them to see what this government of the United States is like, because they’re part of it.
And they have to participate. And you can’t participate intelligently unless you understand it. And so that’s what I’m trying to explain here. Is it more than that though, Justice Breyer?
BREYER: Oh, yes, it is.
CHAKRABARTI: Because right in the beginning of the book, you have a couple of very key words that jumped out at me.
And they have to do with fear. You write, I fear the current enthusiasm for widespread adoption of more purely textual or linguistic approaches to interpretation means that other equally or more important tools will be set aside. Fear is a really interesting word to use there.
BREYER: Well, let me give you an example of what we do.
Is that all right? Do we have a minute?
CHAKRABARTI: Of course.
BREYER: I’m on a train. I’m not on the train, but I read a French newspaper about a high school biology teacher. And he’s on a train, and he’s bringing to Paris a basket next to him with 20 live snails. The conductor comes up, looks at the basket, and says, “Have you a ticket for the snails?”
The teacher says, “What are you talking about? Snails? Why do we have to buy a ticket for snails?” And the conductor says, “Well, read the fare book. It says no animals on the train unless they are in a basket and a half fare ticket has been bought.” “Well,” he says, “They’re not talking about snails, they’re talking about dogs or cats or rabbits or something.
I mean, not snails, mosquitoes? I mean, this is ridiculous.” So — “Well,” he says, the conductor, “Is a snail an animal or not?” So I tell this to the fifth graders. So I say to the fifth graders, “Okay, who’s right? Does he have to buy a ticket or not?” And you should see the arguments. They get into terrible arguments.
They say, “What about a mosquito? And what about a centipede?” And, well, others say, “Isn’t a snail an animal? I mean, it is an animal.” And so I say, now I don’t have to say another word the whole time.
CHAKRABARTI: (LAUGHS)
BREYER: But they say, well. I say, fine, now you understand what I do. I don’t. In an appellate court, we don’t have cases with snails, probably.
We might, unlikely. But we do have to look at the words, for example, the freedom of speech, or the right to bear arms. And we say, how do they apply? And what do they mean here? And it’s just like, what does this word animal mean? It’s the same idea. And we have to reach a better answer. A better answer rather than a worse answer, and there are ways, traditionally, of doing it.
I mean, you read the words, the words, the word, say, is carrot. If the word is carrot, that doesn’t mean a fish, right? I know that. I know a carrot is not a fish. Okay? Got it? But what is it? And how does it apply? And there, traditionally, John Marshall, Holmes, Brandeis, Cardozo, they had ways of finding out.
They’d look at the purpose. Somebody wrote those words. What was the objective? What was their point? Why? And what are the consequences? And how does that fit in with the objective? And what are the values? How do the values fit in with those values in the Constitution of the United States? I mean, all those questions and others are relevant.
CHAKRABARTI: Yeah.
BREYER: So you can say, well, if they’re so traditional and relevant, why’d I write a book about it? I said, I wrote a book because a tidal wave is coming along with a new idea in it. And the new idea is, just read the words, read the words and use some other linguistic devices, and that’s all you have to do, and you’ll get the right answer.
Well, that, I think, is that’s what I fear, because I think that can be harmful.
CHAKRABARTI: Mm-hmm. I’m actually quite taken with your carrot example, right? Because would the original authors of a carrot law recognize new hybrid carrots as carrots, right?
BREYER: Yeah, that’s a question.
CHAKRABARTI: Right. And you know a secret?
BREYER: If you want to know the answer to that question, you’re not going to find it by saying, Carrot.
And you won’t even find it by saying three times, carrot, carrot, carrot. Because the word itself won’t tell you.
CHAKRABARTI: Yeah.
BREYER: In case, what is the word cost? If you, unfortunately, have a child who has a handicap of some kind, the state has to pay for a good education, and if they don’t, you can bring a lawsuit, and if you win the lawsuit, you get your costs.
So that’s the word, costs. And does that include the cost of the educational expert, $29,000? Yeah. Ah. Answer that by saying, “Cost?” You can say it 15 times. “Cost. Cost. Cost.” He says, “I won’t.” But you get the point. You better look to who wrote those words, why, what was their object, what’s the consequence, et cetera.
CHAKRABARTI: Now, Justice Breyer, I’m going to warn you now, that even though the thrust of your argument is words in and of itself on a piece of paper are not enough, I’m listening to your words very carefully right now.
BREYER: That’s very nice of you.
CHAKRABARTI: And you said this tidal wave, right, of a textual philosophy, sort of washing over the legal landscape of this country.
You write again, clearly, in the beginning of the book, that textualism, quote, wrongly treats many of those phrases and statements describing the world, rather than as words that perform technical or legal functions. It may make it more difficult. Now, here’s the thing I want to drive at. It may make it more difficult, you write, for a legislator to perform a constitutionally delegated legislative function.
It may increase the difficulty for the public to hold legislators democratically responsible. Can I then draw the line from that statement in your book to a deeper concern that you have about textualism and its impact on American democracy?
BREYER: This is what I fear. The textualist makes four promises, and it’s these promises, I think, that have made it popular.
One, just read the word cost 15 times or add a few things. Do that, it will be easy. Won’t be so difficult. Two, Congress will be able to know in advance what the judges will have and they’ll be able to legislate better. Three, it will be fairer, because everybody will come to the same conclusion.
And four, we’ll have now a weapon to hold in check judges so they won’t substitute what they think is good for the law. Okay, so I say, that’s a very nice promise. Those four promises are fabulous. I understand why you’re so popular. But! You can’t do it. And then I go through and explain why they break those promises.
And at the bottom line of what I’m fearing is this, that I learned in law school, and I’ve always thought it’s true, that law, if you look at law, you know, very grandly, the whole institution, I think at least the United States, England, other places, law is a way, one way, not the only way, but it is a way of helping different people.
Communities live together in peace. And we hope, productively. And when we look at the Constitution, we see this is written to further certain values. Democracy, protection of human rights, equality, separation of powers, rule of law. They’re written in here. And you know, we have a lot of people, 320 million people.
And they’re every race, every religion, every point of view. They think a lot of different things. But they have to live together. And if law does not do a reasonably good job at trying, at least much of the time, to make their lives a little better, and to further those values that I mentioned in the constitution, some might say, why should I follow it?
Why do it? And if they start to doubt the institutions and sometimes, of course, the institutions will do things they don’t like, then I don’t like either. But the rule of law means, even when you disagree, you make an effort to follow it. I heard Harry Reid say that, the senator in charge of the Democrats, Bush v. Gore. And I talked to the students at Stanford, and I said Harry Reid told us that one of the good things about that case was people didn’t riot. They didn’t throw stones. They didn’t pick up the paving stones from each other. And I said, I know a third of you students out there, you’re thinking too bad there weren’t a few riots. We’re so right.
And that case was so wrong. I mean, I thought it was wrong. And I say, but before you come to that conclusion, you turn on your television set and you see what happens in countries who decide their problems, big problems, often that way. So the rule of law is one weapon, not the only weapon, but one weapon that people over hundreds of years have developed in order to get people to live together peacefully.
And I don’t want to see that weakened.
CHAKRABARTI: Justice Breyer, we have to take a quick break, as you can hear with the music. But I want to ask you a super quick question. I’ve heard you talk about the tap on the desk, or pound on the desk a couple of times in more passionate moments in the past few minutes. I know you carry around a copy of the Constitution with you.
Is that what are you tapping on?
BREYER: Yes, I do. I have it in front of me.
Part II
CHAKRABARTI: Justice Breyer, let’s get down to some definitions here. So first of all, how would you define textualism?
BREYER: Well, I have not done as good a job defining it as the ones who practice it, Nino Scalia, who was a good friend, Neil Gorsuch, and others. And they say you look at the words in the statute, or you look at the words in the constitutional phrase, and they have the meaning that they would have had to a reasonable person.
At the time that they were written. And Scalia goes on and says, don’t, stay away from looking at purposes and stay away from looking at consequences, because that will just produce confusion.
CHAKRABARTI: We’re going to just hear a little bit of tape in a few minutes from the late Justice Scalia as well. So, with that sort of strict definition of textualism in mind, then conversely, how do you define what you call pragmatic judicial philosophy?
BREYER: Ah, this is where … pragmatic isn’t quite the right word. I mean, you want to suggest that the judges there, in what John Marshall, the Chief Justice, what he said hundreds of years ago. About, he said, where the mind labors to discover the design of the legislature, it seizes everything from which aid can be derived. In other words, it depends on the case.
And maybe sometimes it’ll help you to try to figure out what those members of Congress were trying to do and what were the big issues of the day among the public, among groups of the public that they were trying to help make better. And we hope, and solve some of the problems and what are the consequences and what are the values that are in this constitution, democracy, human rights, and so forth, and are they furthered or not?
All those things. Now, how do you know which to pick out? It depends on the case. And experience helps. And that’s Holmes saying that. It’s not just making it up. All right. Now Nino and I used to debate, we had a good time, and we would go to college law schools. We went to Lubbock, Texas once. I remember that. That was fun, and because they hadn’t seen Supreme Court justices in Lubbock, Texas and the students all came out. And they thought it was a football game, possibly because we were all in the football stadium.
And what they went away with, I’m sure, is thinking, Nino and I are good friends. We get on well, but we have different views. So I think the freedom of speech, that’s what it says in the constitution. Now the value might not change much, but what counts and how you apply that will change over time, because the world changes.
So I say to Nino, you know, “George Washington didn’t know about the internet.”
CHAKRABARTI: (LAUGHS)
BREYER: And Nino says, “I knew that.” He says, “It’s more like this.” He says, ‘It’s the two campers.” The two campers?” Says, “Yeah, one sees the other putting on running shoes. ‘Why are you doing that?’ he says, ‘Well,’ he says, ‘There’s a bear in the camp.’ He says, ‘You can’t outrun a bear.’ He says, ‘Yeah, but I can outrun you.'”
CHAKRABARTI: (LAUGHS)
BREYER: Good point. So he says, you know, if I had your way of interpreting the constitution, if I use that, it’s so complicated that only you can understand it. And I said, yes, but if I followed your approach in interpreting the constitution, we would have a constitution that no one would want.
CHAKRABARTI: Mm. Well, justice.
BREYER: Because it has a job.
CHAKRABARTI: I’m so sorry to interrupt you, but I just want to hone in on one thing. And then we actually do have a very jovial debate between you and the late Justice Scalia from 2009, which I want to play a few minutes of, but it seems to me, one of the most important distinctions between textualism and pragmatism, as you refer to it in the book, is that textualists seem to ascribe to a belief that the values enshrined in the Constitution, specifically if we’re talking about the Supreme Court, are essentially timeless.
And, you know, you don’t have to worry about the consequences of a ruling, because the ruling would be founded in values that really inform our democracy and have so for a couple of centuries. Whereas the pragmatists, as you just said, are actually concerned with the consequences of a ruling on the people of the country today.
Is that a fair description?
BREYER: That’s a fair description from their point of view.
CHAKRABARTI: But not from yours. Okay, go ahead. Yeah.
BREYER: I would say that the Constitution, I want another word in there, too. One of those values, of course. It intends to keep the values, but the world changes. I mean, their philosophers are written, Montaigne wrote about that in 1584.
Things change all the time. And so to maintain the values, you have to be willing to understand how exactly the world has changed. And so the other word I would add, which I like, it’s a really awkward word, I can’t find one that’s less awkward. The word is workable. When Marshall and the others applied and first wrote this constitution, they said it has to last for a long time.
It has to deal with problems, says Marshall, that are now dimly seen, if seen at all. And this is meant to last. And it’s meant to work. For who knows how long he had in mind, but it was probably more than a century. It probably goes centuries. And you can’t do that by saying, Oh, we’re going to apply it just as everybody in 1789 thought it would apply.
You know, if you’re thinking of the people who were politically active in 1788, 1789, just after the Civil War, it seems to me there’s one group missing, isn’t there?
CHAKRABARTI: Several groups, in fact.
BREYER: Yeah. Yeah. Yeah. Exactly. And so this world has changed. It’s evolved. Women, there aren’t slaves, and there are women with votes and there are women who are just as much a part of this world that we live in.
And so we have to be aware of how to make those values live today, and to sit there and say, Oh, what we’re going to do is what, use just linguistics. I mean, take us here. I’ll give you, you want a statutory example. I like this one. You can sue the government, government officials, for a lot of different things towards suits, et cetera, but there are some that are exempt in certain areas and some that are exempt include customs and excise officers.
They are exempt from certain lawsuits. Got it. Customs and excise officers. Now let’s go to the next words. It says, and any other law enforcement officer. All right. And any other law enforcement officer. Who? Traffic cops, the hundred thousand policemen in the country. Oh, Hmm. Let’s look at the words five or six times.
Will that tell you? No, no. You better find out what this statute’s about. You better find out if a reasonable person in Congress would really have wanted to exempt from lawsuits every policeman. Maybe. But let’s look at what they said in the reports. Let’s look at what this whole thing was, the argument was.
And the same is true. How do we decide whether the governor of Texas had to remove the Ten Commandments monument in the garden in front of his Capitol house? How? Is that an establishment of religion? Or is it not? And if we say that it is, will there be people going to every courthouse in the country and saying you have to chisel out the Ten Commandments?
And if you say it isn’t, you go back and look and say, this has been here for 80 years, it wasn’t put here by a religious group, it was put here by the Fraternal Order of the Eagles, which is a secular group. And by the way, there was some rumor that the reason it was put there was that Cecil B. DeMille wanted to advertise his film, The Ten Commandments.
CHAKRABARTI: (LAUGHS)
BREYER: And there are a bunch of other monuments there, none of them is religious. All right, how do we decide that? I say, well, it will help us there to go back to the original. Yeah, the original, origin of the Establishment Clause and the Free Exercise Clause, designed in part Jefferson, Madison, the others, because they knew what could happen in Europe when the Protestants and Catholics get into battles.
They knew that Latimer and Ridley had been burned in the city of Oxford, and Thomas More, who looked so benign over in the Frick Museum, wasn’t really so benign. And there were a lot of people who were not alive as a result, and they said, in this country, we’re going to have every religion. We’re going to allow those religions to live together.
You’re going to practice yours, I’ll practice mine. You teach yours to your children, you teach mine. Let’s refer back to that. Let’s refer back to the purposes. And you say the text says you’re not getting to the values. Of course, I’m getting to the values. What is the value of that First Amendment in the religion clauses if it is not to allow people of now maybe a hundred different religions.
Live together peacefully in this country, which is a remarkable thing, and I don’t want to see that undercut. I don’t want to see that weakened.
CHAKRABARTI: Well, so, Justice Breyer, what’s fascinating to me is, again, you’ve written this book because you see, as you called it, a tidal wave of textualism rising across the legal landscape of the United States.
And I would argue that it’s doing that in part because, to many people, it’s making a successful intellectual argument about how to read the Constitution. And I would love to actually give a concrete example of that. And you know, you had mentioned that you oftentimes engaged in sort of public conversations with the now late Justice Antonin Scalia.
So there’s one that we dug up from 2009 when you and Justice Scalia were at the Rehnquist Center at the University of Arizona. And there’s an exchange. It’s a couple of minutes long, so bear with me. I really want to hear it, because not only would we hear how you make the argument in 2009, but Justice Scalia’s responses to it.
And the question that you had, both of you had been asked, was about Roper v. Simmons. And that was the 2005 case that, by a 5-4 ruling, found it unconstitutional to impose the death penalty on someone who committed a crime when they were below the age of 18. And the interviewer began by asking Justice Scalia why he, you know, ruled in the four-vote minority and wished to actually preserve the possibility of the death penalty for people under the age of 18.
ANTONIN SCALIA (TAPE): Because I think what the ban meant in 1791, when it was adopted, it means today. And in 1791, when the Eighth Amendment was adopted, the death penalty was the only penalty for a felony. There was no argument possible that it was unconstitutional. So, you know, it may be a very bad idea. And nothing forces the American people to execute people who’ve committed the most horrible crimes before they’re 18 years old. Nothing, nothing requires them to do that. If they think it’s a bad idea, they can pass a law in their state which says no one will be executed for anything done under 18. But for this court, my court to just say it doesn’t seem to us a good idea, and therefore it’s unconstitutional, I just don’t understand that.
Go explain it, though.
(CROWD LAUGHS)
Please do.
When I look and see what was intended, I don’t know the exact details of what everybody in the 18th century thought was cruel and unusual, but they didn’t enact that. They enacted into law cruel and unusual punishment, which meant a set of values, not a specific set of 18th century circumstances.
So for me, the question would be, how do those values apply to our circumstances today?
What circumstances have changed?
I mean, death, death was death then, death is death now.
(CROWD LAUGHS)
Eighteen was eighteen then, eighteen is eighteen now. You’re talking about applying different values.
I agree with you that they were enacting a value judgment. But it was a value judgment of that time. You do not have to adhere to that value judgment. If indeed you think you shouldn’t execute people under eighteen, fine, pass a law. But once you abandon what they meant by cruel and unusual punishment, and say, Oh yeah, even though they didn’t think it covered the death penalty, we think it does.
You are at sea, and it is, as you say, a difficult job. Steve, I don’t know how you do it. I’m just glad that I don’t play that game. I would lie awake at night, you know?
Are you going to execute people?
What about practices that were followed at the time of the founding? Ear notching, the pillory.
If cases like that arose would, would you find likely that they’re constitutional?
I find they’re constitutional and stupid. Listen, a lot of stuff that is constitutional, an enormous amount of stuff that’s constitutional is stupid. That cannot be the test.
No, the word is really stupid.
The word in the constitution is cruel.
And the word is unusual. It’s possible that over time, people have a different idea of what’s cruel. That doesn’t mean that that thing isn’t cruel, because somebody in the 18th century thought it wasn’t. You see, it may be cruel, but the word hasn’t changed its meaning.
He talks as though, as though it’s a one way, a one-way street.
You know, we get more gentle over age, not more cruel. But it’s not a one-way street. If you think cruel is whatever you think is cruel, not what the founders thought was cruel. Whatever they permitted, is permitted. And whatever they forbade, is forbidden. Once you abandon that, you’re at sea.
CHAKRABARTI: So that was from 2009. Justice Breyer, appreciate your patience and listening back to that. I just find that exchange utterly thrilling. And the rapport between you and Justice Scalia is beyond delightful. But we have two minutes before our next break, Justice Breyer. What is, you know, today, what continues to be your response to Justice Scalia’s assertion that —
BREYER: Oh, he said something.
See what fun it was. I mean, he’s fun. He’s highly intelligent.
CHAKRABARTI: But when he said, you end up with a rudderless system of law if you use evolved values. That’s what he says.
BREYER: They thought perhaps in the thought flogging was okay. You heard him say flogging, ear notching. Maybe torture. Go look at the Elizabethan torture chambers.
I mean, please. They happen to think that that was not cruel then. But we think it was cruel now. And the word in the constitution is cruel. And if you really want to go into it in depth, I wrote a fairly lengthy opinion, I think over 40 pages, in a case called Glossip. Where I said, let’s look at how the death penalty is applied now.
And must be applied because of other changes in what counts as due process, what counts as fair procedure. There are only two or three places in the country where you get a lot of it, maybe four or five districts. And it’s random. Random. Did they think a handful of jurisdictions, a handful of counties, mostly in say Texas, Florida, Oklahoma, a few others, a handful, that that means it wasn’t usual.
The word in the constitution is not death penalty. The word in the constitution is cruel and unusual. And so what was not unusual then could be unusual now.
CHAKRABARTI: Right. The deliberate. I was just going to say the deliberate vagueness of the language. Its intent is so that it works for America in all its versions as time passes, right?
BREYER: Yes, that’s exactly right.
CHAKRABARTI: Justice, yeah.
BREYER: That’s why I say, you want a constitution that doesn’t work? Have one where everybody’s ear is going to be notched.
Part III
CHAKRABARTI: Justice Breyer, as I read through your book, I started forming a new view of why textualism, even though that’s what you’re arguing against in the book, but why textualism has become, over the past several decades, an increasingly popular way of viewing the law.
The law, because it seems to me that by textualists, when they say, simply look to the wording of the Constitution and what was known and assumed in the values of the people who wrote it at the time, what it is, it’s a very elegant, and simple and intellectually cohesive way on paper to order the world. And what it reminded me of, it’s not messy, right?
So what it reminded me of are free market economists, right? Who believe through and through that human beings will always act out of rational self-interest, and so therefore the market will always find the best solution in matters of money and business. The two things seem very much the same to me, that they’re intellectually pure ideas, but kind of difficult to prove in practice, because people are not rational, and values do change.
BREYER: No, I don’t think they’re the same. I’m sorry.
CHAKRABARTI: Oh, you don’t? No. I’m happy to hear your counterargument. Go ahead. Yeah.
BREYER: The counterargument is a competition. I mean, I taught antitrust for a long time. I worked in the antitrust division. And I certainly wouldn’t believe in complete free markets. You have to have regulated free markets.
But the notion of people competing to give consumers what they’re willing to pay for and will pay more for is one way of doing increasing the extent to which you make them better off. There are lots of problems with it, but there are solutions or ways of dealing with those problems. And when you start talking about textualism, I’m sorry, I don’t see the way.
For example, they say, Oh, this is such a good method. It stops the judge from substituting what he thinks is good or she thinks is good. For the law, let’s look at the abortion case that they recently decided where I dissented. They overruled a case that had been on the law books for 50 years. … So, I imagine my conversation, Mr. Textualist, which cases are you going to overrule? Are you going to overrule every case that wasn’t done by a textualist method? If you do that, you better overrule every case, just about decided before the year 2000 because they rarely used it.
And no textualist would do that, because if they did do it, we wouldn’t have any law left. Okay? Impossible. Chaos. No. What they’ll say is, we will overrule the ones that we think are terribly wrong. Oh. I see. I get it. You’re going to stop me from substituting my judgment of what is terribly wrong, and you’re going to replace it with your judgment of what is terribly wrong.
Oddly enough, I don’t see a difference between us in the risk of a judge substituting what he thinks is good for the law. Okay? Got it? And you tell me a difference. I haven’t heard it yet. And so, there, it’s a wash. Well, if it’s a wash, what stops the judge? From just doing whatever he thinks is good.
CHAKRABARTI: Well, but those textualists would say it’s not what I think is right or wrong.
It’s what’s written in the Constitution.
BREYER: Ah, yes. And what does it say about which cases you overturn? I have the Constitution here. What page shall I look at? I’ll tell you what it says about which cases to overrule. It says nothing. Not a word. The legal doctrine is called stare decisis. Okay, so we don’t have words here telling us which cases to overrule.
So we’re back to the problem of the textualist thinking, I will overrule those cases that are very wrong.
CHAKRABARTI: Mm hmm.
BREYER: Oh, I see. You will overrule those cases that are very wrong. And which are those? And who’s going to decide that? You are. And so there is the risk there, the same as the risk anywhere. If you want to be a bad judge, you can be a bad judge.
If you want to substitute your judgment for the law, you can do it, but that’s not being an honest judge. And that is the overall problem. And that is promise number four. And that is perhaps most important of the textualist promises. And that one is down the drain.
CHAKRABARTI: Hmm. You know, you mentioned stare decisis, and I’m so thrilled to be interviewing you Justice Breyer, because one of my favorite cases of the past decade or so is the Janus case, about unions and whether or not union members can be forced to pay their dues.
I thought it was a spectacular case, that I think it was a 5-4 ruling in favor of not forcing people to pay their union dues.
BREYER: And overruling earlier cases that tell the contrary.
CHAKRABARTI: Which was explained explicitly in the majority ruling. I mean, it was said, it’s just wrong, several cases, that the court itself had decided in the past.
And in Justice Kagan’s dissent, scorching, actually, she calls this out. She says, We might as well just throw stare decisis out the window. Because it doesn’t even apply to the court anymore if we’re willy nilly picking the cases that we think are right or wrong.
BREYER: No, no, no. They’re not willy nilly.
CHAKRABARTI: Well, but how did that go over with the majority?
BREYER: They didn’t, look, in a dissent, a dissent is a decision, and I’ve joined many dissents and written many dissents, that’s some words and opinion on paper, which is, was addressed, which is a loser. It was addressed, really, to the majority. And what you were hoping to do is convince them. And you didn’t.
Alright, so, much but not all of the time, you’ll publish it. So people can see that you had a different point of view, not that it’s really the court’s decision that’s important. But over time, maybe things will change, but for present purposes, that’s an excellent case. Because who is it that decided that they were so wrong in the courses, in the cases before Janus?
It was the five people in the majority. And how did they decide? Did they decide that it was wrong because they didn’t use textualism before? No. They couldn’t do that. They did decide on the ground that they thought that was wrong. So all you’re going to have is five judges deciding which cases are right or wrong.
That seems to me a worse method for maintaining a degree of legal stability, for having a rule of law. For having a set of laws that people can rely upon in their daily lives. We’re avoiding every client going to a lawyer and said, let’s try to get this one overruled or that one overruled. We’re recognizing that there can be some mistakes in the law, of course, but it’s better to keep the law.
That’s what Brandeis said. Better to have a law more definite than to overrule everything. Overrule never? That’s wrong. If we never overruled, never, well, we’d still be left with segregation. Sometimes, as in Brown v. Board of Education. You must overrule an earlier case, which history has shown to be seriously wrong.
But beware of jumping from that to overruling a lot. The key word is sometimes, sometimes. And all these things, sometimes, maintaining a legal system that has value. Maintaining a legal system that applies the Constitution’s values to a world that often changes. Maintaining a system where 320 million people of many different points of view in races and religions and so forth can live together peacefully, can live together productively.
Maintaining such a legal system, which we gave to the world, really, and we didn’t think up all those ideas. They were thought up by Cicero, by Seneca, by the Enlightenment in France, by the Enlightenment in Scotland. But we put them into practice. And Lincoln, I can, you know, Lincoln and Washington and all the others, and what I say to the schoolchildren, what we have right now, we were, we always have been.
The United States has always been. An experiment. Can we really do it? Can we take these democratic human rights protective values that are in this document, and can we use them to maintain a country that exhibits them? In the face of a world and a country where people believe different things.
And Lincoln, I don’t know, you all know this, but I mean, my wife said to my grandchildren, $20 for anyone who memorizes the Gettysburg Address. Think of those few words. “Our father’s brought forth upon this nation, fourscore and seven years ago, a new nation conceived in liberty and dedicated to the proposition that all men are created equal.
And now we are engaged in a great civil war to see whether that nation, or any nation so conceived, can long endure.” And I can find in Washington the same thing. Why? Because the intellectuals. I know plenty of intellectuals up in Boston. Believe me. And they think of great ideas. But they’re not quite certain that they will pan out in practice.
CHAKRABARTI: (LAUGHS)
BREYER: Can they really do it? Can they? You see? And that’s what those French, Lumières, were thinking. And the Scottish ones too. Can they do it? And they’re, well —
CHAKRABARTI: Justice, sorry, I just, unfortunately, I have to be mindful of the time. And there’s two more questions at least, that I want to ask you in sort of the reigning five minutes that we have. And by the way, my sixth-grade teacher required all of us to memorize the Gettysburg Address.
BREYER: Good, you get the $20 from my wife.
CHAKRABARTI: We got a little laminated copy of the Gettysburg Address with a penny laminated onto it with Lincoln’s —
BREYER: A penny was worth a lot.
CHAKRABARTI: (LAUGHS) Well, I’m not that old. So here’s the two questions I have left. First. Again, I’m still taken by the alarm, the alarm that you set out in the book. You talked about here, about the title wave and clearly your passion to sort of resist the title wave of textualism.
But why do you think, why do you think it has become and is continuing to be ever more popular in the legal and judicial world?
BREYER: Sounds simple, sounds clear, sounds as if it could produce those consequences that are okay, would be good if we could do it. Simple, gives you clear answers, everybody knows what the result will be, and it stops judges from substituting what they like for the law.
Perfect. A set of promises. And 1, 2, 3, 4. We’ll go through them and see if they can be carried out. And what I believe over time is that the court, it takes time to adjust to the Supreme Court if you’re appointed to it. Time. Time. The president told me the applause dies away very quickly. And you’re left with that job.
And that job when the Constitution is involved, is in large part, in large part, to see that those values are there. And that they apply in a world where women do vote now. Women are part of the political politics in the United States. And there isn’t slavery. And we do have these things called AI or whatever they are.
And we do have a world that is continuously changing. So you think you can apply the values that were there in 1789 to this world today and one that’s ever changing, and you think you can keep the Constitution workable? Good. If you think all those three things after reading about them, I have a bridge at the southern end of the island of Manhattan, which I will sell to you.
CHAKRABARTI: And yet it seems like many of your colleagues in the legal profession would perhaps be willing to buy that bridge. So, here’s the thing, though. I want to bring it back to the most important group of people, and that is the American People, because as you well know, Justice Breyer, we’re living at a time where Americans have historic low levels of their faith in government institutions, including the Supreme Court, which used to enjoy amongst the highest approval ratings amongst Americans.
It’s now at its lowest level ever. Now, I know that in previous interviews you have been understandably resistant to criticize the court directly. I’m not going to ask you to do that, because I think a knowledgeable reverence for American institutions is actually quite underrated now, and I honor your decorum on this matter.
But decorum doesn’t necessarily have to elbow out candor. So candidly speaking, do you think the institution of the United States Supreme Court is in need of reform?
BREYER: It depends on what the reform is.
CHAKRABARTI: Adding more justices, having a mandatory retirement age.
BREYER: I’m actually, I have, I have views on those things.
But I’m not going to announce them at this moment. And, if there are serious efforts to do that, I would look into it a lot more than I have. Beware of, you know, two can play a reform game. And be careful. And, but underlying what you’re saying is a very, very tough question, particularly for a judge on the court.
I mean, you don’t want to just be rubber stamping public opinion. Suppose you were, which you would never be personally, but suppose you were, or someone was the least popular person in the United States and he’s on trial. You want the courts in such cases to follow public opinion? No, the answer has to be no, they’re judges.
But if the court never, never, pays attention to what the public thinks. How do we maintain a rule of law which depends upon the public respecting the need to agree with cases that sometimes they disagree with and sometimes are very wrong. So how do we balance all that? How do we figure that out? And if you have the answer to that question, I would like to know, it is it’s tough.
What Paul Freund said. What Paul Freund said, who was a good professor over at Harvard, great constitutional law professor, in talking about the role of politics, public opinion, I mean, think of the trouble that the court had, the trouble it had desegregating legally, doing away legally with Jim Crow, which isn’t finished to this day.
But you see, think of all those things. And what Paul Freund said was this, he said, No judge decides a case on the basis of the political temperature of the day. But every judge is affected by, he’s talking about politics, by the climate of the era.
CHAKRABARTI: Mm hmm.
BREYER: That’s a very profound remark. Of course, a little hard to understand, but nonetheless, nonetheless, yeah.
And there you are. And so to what extent do you worry about public opinion? Never? Well, you’re going to be in trouble. Always? Well, you’re not going to have a fair system. And a lot of judgments in the Supreme Court are there, which a judge and others will try to make drawing on experience that goes on a long time.
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