A Scholar Speaks: Justice Stephen Breyer on Pragmatism, Not Textualism
A Scholar Speaks: Justice Stephen Breyer on Pragmatism, Not Textualism
When a scholar speaks, listen up! Stephen Breyer, who retired two years ago (after 14 years as an appellate court judge and 28 as an Associate Justice on the U.S. Supreme Court), wears the Scholar label comfortably. In Reading the Constitution: Why I Chose Pragmatism, Not Textualism, he shares what he’s got on his mind; it’s a lot, as it happens.
Don’t expect the skinny. Reading the Constitution doesn’t Tell All, at all. Justice Breyer offers no anecdotes; anyone who expects dirt should look elsewhere.* Instead, he offers a well-researched and very ably presented call for Gray, as opposed to Black or White. (My labels, not his.)
Justice Breyer, ever polite and refined, takes down textualism (focusing on the plain meaning of words) and originalism (using the public meaning of words when the states ratified the Constitution and its 27 amendments.) He does so in ways that often don’t get mentioned in the public sphere.
Justice Breyer offers context at the outset. With a lengthy discussion of McCulloch v. Maryland, he explores the need for a workable constitution. The Court recognized, in a unanimous opinion about the constitutionality of a national bank (yes) and state taxation of the bank (no), that the men who wrote the Constitution wrote it for the ages. To create a workable framework for what might come, they were purposefully vague. They knew they could not anticipate eventualities and didn’t try to. How’s that for humble and modest? (The Court decided McCulloch in 1819, 29 years after the states ratified the Constitution. Chief Justice John Marshall and counsel on both sides played roles in the drafting and ratification processes.)
Analyzing textualism within the context of statutes, Justice Breyer notes the many challenges associated with trying to find one plain meaning within a set of words. Having serious legislative chops – he served as Chief Counsel for the U.S. Senate Judiciary Committee in 1979-80 – he likely does not give poor drafting enough credit for creating a lack of clarity. However, even well-drafted statutes match up against unexpected situations, where plain language creates silly outcomes, or worse.
At length, Justice Breyer discusses canons, tools adopted by courts to parse language and reach alleged textual clarity. He notes, as he should, that these canons reflect choices made by textualists. The canons do not exist in a universe; judges choose to use them, and they do so because words, alone, can lack clarity. (They also pick and choose among them in any given situation, and in doing so put thumbs on scales.)
Justice Breyer makes the case for using a variety of tools when a court – in his examples, it’s the U.S. Supreme Court – must apply a statute to a given set of facts. Canons? Yes, but legislative history, in the form of committee reports, counts too. So does the back story associated with a statute aka its purpose. When textualist outcome turns a statute on its ear, we have a See Something, Say Something event. (Again, my words!)
With respect to originalism and its use as a tool for addressing constitutionality, Justice Breyer gets feistier. The public meaning in the late 18th century rests on the bones of white men. Women did not gain the right to vote for 138 years, and that fact affects any meaning that originalists might ascribe to words affecting women which white men wrote 235 years ago. Ditto for African Americans and for those among us, including Justice Breyer and me, who adhere to religious faiths that were almost non-existent in 1787-8.
Justice Breyer gets worked up most about the view, most common among originalists, that believing a prior Court majority wrongly decided a case justifies mandates reversing it. Stare decisis means “the thing decided” and it is a highly valued legal canon. Sticking by a decision, even if it was in fact not correctly decided – in almost all instances, no correct decision exists – provides stability and a reasonable degree of certainty for tens of millions of people. Trifling with that requires a solid justification. In his thorough analysis of Dobbs v. Jackson Women’s Health Organization, Justice Breyer demonstrates with compelling facts why the majority offered no reasonable justification for revering Roe v. Wade and its progeny.
Justice Breyer uses the word workable and its variants roughly 100 times. In doing so he reflects – yet again, my words – a deeper form of originalism, focusing on the original purpose of the U.S. Constitution and, for that matter, statutes. With any set of words that allow or proscribe conduct, wise people know they cannot predict every outcome. The very act of establishing Dos and Don’ts for people presupposes the likelihood that someone – in the world of law, a judge – will need to figure out what the words mean in context. That’s called judging, which shares its root with judgment.
Gray. Judgment. Humility. Many in America find these traits abhorrent or worse in our times. Pragmatism, as Justice Breyer describes it, deserves our consideration because it reflects the maturity and care we must have in these absurdly challenging times.
*He does reference having done events at law schools with Justice Antonin Scalia, and the footnote – the book is full of them – references an event at the law school from which I graduated, an event I attended with my daughter.