Reading the Constitution: Why I Chose Pragmatism, Not Textualism, which on Monday published an eye-opening interview with the 85-year-old jurist-turned-Harvard Law professor.
“Something important is going on,” said Breyer, whose book will be released on March 26, the same day the Supreme Court will hear arguments regarding the availability of mifepristone, the so-called abortion pill.. “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.
Although Breyer does not call them out by name, his book takes aim specifically at the three justices appointed by former President Donald Trump: Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett, pressing them to take a different tack. “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,” Breyer writes, noting “the decline in trust in the court—as shown by public opinion polls.”points out, interprets statutes based on their words, or “text.” Originalism attempts to interpret the Constitution as the founders would have back in the 1700s, which, according to Breyer, has three main problems.
“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 writes. “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.
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