Former Supreme Court Justice Stephen Breyer, who stepped down nearly two years ago, voiced concerns about the court’s shifting towards a more conservative stance, which intensified during the Trump administration.
The former liberal justice expressed his views in an interview with Politico, which was published earlier this week.
Commentators note that the Supreme Court has shifted towards a conservative stance since Justice Breyer was appointed by President Bill Clinton in 1994. President Donald Trump’s nomination of three conservative justices—Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett—played a significant role in paving the way for potential overturns of Roe v. Wade and affirmative action policies in college admissions, and recognizing a constitutional right to keep and bear arms in public for self-defense.
At 85 years old, Justice Breyer disapproves of the court’s conservative shift and has voiced his dislike for originalism and textualism, ideologies favored by conservatives.
Originalism holds that the U.S. Constitution should be interpreted according to what the words in the text meant at the time they were written. Textualism, which was championed by the late conservative Justice Antonin Scalia, holds legal text should be interpreted based on its plain meaning, as opposed to other considerations such as what lawmakers intended when they drafted and approved a statute.
Liberal-leaning justices, like Justice Breyer, typically advocate for more flexible methods of interpreting legal texts.
If the court continues to interpret laws in ways favored by conservatives, “We will have a Constitution that no one wants,” Justice Breyer told Politico.
The former justice said he and Justice Scalia used to argue about legal interpretation in front of students.
“I would say, ‘Nino, the world has changed. George Washington didn’t know about the internet.’ And Nino would say, ‘I knew that. Good point.’ And then he would say that this method—what I think of as traditional, I think involves purposes, consequences, values and sometimes much more—he’d say, ‘It’s too complicated. Maybe you’re the only one who can do it.'”
“And I would say to him: ‘Yes, but we if we adopt your method, your method of interpreting the Constitution, or the statutes, we will have a Constitution that no one wants.’ Because the world does change, not necessarily so much in terms of values, but certainly in terms of the facts to which those values are applied. And that I think is the real argument—taking very seriously what they want, and saying—through example, not through a theory that a law professor has made up, but through example—showing that this textualism or this originalism just won’t work.”
Justice Breyer slammed the Supreme Court’s decision to overturn Roe v. Wade in the Dobbs v. Jackson Women’s Health Organization case of 2022. The ruling, issued just days before his retirement from the bench, found abortion as lacking constitutional protection and shifted the authority over abortion regulations back to individual states.
In Dobbs, five conservative justices voted to reverse Roe. Chief Justice John Roberts, also considered a conservative, voted to uphold a restrictive Mississippi abortion law in the case but wrote that he would have stopped short of overturning Roe. Three liberal justices, including Justice Breyer, issued a strongly worded joint dissent.
Justice Breyer emphasized that one of the key reasons why Roe should have been upheld is the principle of “stare decisis,” a legal doctrine that entails respecting legal precedent.
“And stare decisis means that you are very reluctant as a judge to overturn a case that has been decided in the past. Not ‘never,’ but very rarely. That keeps stability in the law.”
Originalists run into problems when deciding if a precedent should be reversed, he said.
“Now tell me, what cases are you going to overrule? Are you going to overrule all cases that do not use your originalist method? If so, you will overrule virtually every case in the Supreme Court, because very few use that method.”
Textualism and originalism don’t offer guidance on overturning precedents, he said.
“Who’s going to decide—that judge who wants to overrule it? And how will he decide? Textualism won’t tell him. Originalism won’t tell him. He will have to think to himself, ‘Is this egregiously wrong?'”
“Now, what have I just done? I’ve created room for the judge to substitute his own views of what is egregiously wrong—or what is really wrong or what is wrong and what is right—for the law. Exactly the thing that he adopted textualism [to avoid]—because he thought the pragmatists, the traditionalists do that. Well, if they can do that, so can he, because textualism allows exactly the same thing.”
Justice Breyer remarked that the Supreme Court relies on public backing, and adherents to originalism and textualism may struggle to sustain that support in the long run.
“What I worry is this: Over time, if I’m right, and I think I am, about how originalism and how textualism will work … they will move the interpretation of statutes away from the direction of trying to help people. They will move the law away from the direction of trying to produce a society where 340 … million people of every race, every religion, every point of view, can live together more peacefully and productively.”
With Second Amendment rights, for example, “we will not be allowed to look at what I think is a rather salient fact: There are 400 million guns in the United States. Should you not be able to take [into] account that we are number one in guns in the world?”
“That will move us away from the Constitution’s basic values. And if we are moved away to that degree, people will instinctively have less reason to follow cases they don’t like, which is called the rule of law.”
Justice Breyer has shared additional viewpoints on the Supreme Court during his current book tour, where he’s promoting his memoir titled “Reading the Constitution: Why I Chose Pragmatism, Not Textualism.” The book, published by Simon and Schuster, hit the shelves on March 26th.
On March 24th, during an interview with NBC’s “Meet the Press,” he expressed his backing for term limits for Supreme Court justices.
After a pressure campaign from left-leaning groups urged him to leave office to give President Joe Biden an opportunity to replace him with a younger liberal justice, Justice Breyer stepped down at the end of June 2022.
President Biden replaced him with another liberal, Justice Ketanji Brown Jackson, who is now 53.
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