Stephen G. Breyer retired as an associate justice of the Supreme Court in 2022. Over the course of his 28 years on the Supreme Court, Justice Stephen G. Breyer authored some 200 dissents, on everything from school integration to the death penalty to gun rights. But Breyer’s most important dissent might be the one that awaited his retirement: his new book taking on textualism and originalism, the dominant conservative approach to interpreting laws and the Constitution.
“There you have the interpretive job of an appellate judge,” Breyer writes. “How do we find the ‘right’ answer?” In fact, Breyer writes, the framers themselves “understood that they were defining a framework intended to endure and adapt to changing circumstances over hundreds of years. This flexible feature of our Constitution has permitted American society, including the courts, to recognize new facets of the right to liberty and equality that the document protects: the right to contraception, to same-sex intimacy, to interracial marriage, to gay marriage.
So, what would Breyer put in its place? He proposes a return to a judicial interpretation that takes text as one among many tools in the judicial toolbox but that also focuses on — this is Breyer’s favorite word — workability. There is, he writes, “an overarching, practical need to maintain the values that lie at the heart of a document meant to last; in other words, to maintain a workable Constitution.”This is a view nearly as old as the Constitution itself.
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