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Justice Breyer, out of court, sounds the alarm on the Supreme Court's decision

Justice Stephen G. Breyer's Supreme Court chambers aren't as big as the ones he occupied before his retirement in 2022, but they're still pretty nice. As before, they include a working fireplace, which was crackling when I went to visit him on a temperate afternoon in late February to talk about his new book.

In earlier interviews, Justice Breyer could be disjointed and opaque. This time he was direct. He said he intended to sound the alarm about the direction of the Supreme Court.

“Something big is happening,” he said. The court has taken a wrong turn, he said, and it is not too late to reverse course.

The book “Reading the Constitution: why I chose pragmatism”, Not Textualism”, will be published on March 26, the day the Supreme Court will hear its next major case of abortionon access to pills used to terminate pregnancy.

The book devotes considerable attention to Dobbs v. Jackson Women's Health Organization, the 2022 decision that removed the constitutional right to abortion. Justice Breyer, who dissented, wrote that the decision was incredibly naive in saying it returned the issue of abortion to the political process.

“The Dobbs majority's hope that legislatures and not the courts would decide the issue of abortion will not be realized,” he wrote.

He was more energetic during the interview. “There are too many questions,” he said. “Are they really going to allow women to die on the table because they won't allow an abortion that would save their lives? I mean, really, no one would do that. And they wouldn't do that. And there will be dozens of questions like that.

The book is a sustained critique of the court's current approach to the law, an approach that it says fetishizes the texts of statutes and the Constitution, reading them rigidly, without a common-sense appreciation of their objective and their consequences.

Without naming names, he appeared to call on the three members of the court appointed by President Donald J. Trump — Justices Neil M. Gorsuch, Brett M. Kavanaugh and Amy Coney Barrett — to reconsider their approach to the role.

“Recently,” he writes, “major cases have come before the courts while several new judges have spent only two or three years on the court. Major changes take time, and newly appointed justices have many years to decide whether they want to construct the law using only textualism and originalism.

He added that “they may well be concerned about the decline in confidence in the Court, as public opinion polls show.”

Textualism is a way of interpreting laws by focusing on their words, leading to decisions that depend on grammar and punctuation. Originalism seeks to interpret the Constitution as it was understood at the time of its adoption, even though, Justice Breyer said in the interview, “half the country was not represented in the political process that led to this document”.

There are three big problems with originalism, he writes in the book.

“First, it requires judges to be historians – a role for which they may not be qualified – constantly searching for historical sources to find the 'answer' where there often is none,” a- he writes. “Second, it leaves no room for judges to consider the practical consequences of the constitutional rules they propose. And third, it doesn't take into account how our values ​​as a society change over time, as we learn from the mistakes of our past.

Justice Breyer did not accuse judges who use these methods of being political in the partisan sense or of acting in bad faith. But he said their approach represented an abdication of the judicial role, in which they should consider an issue from all angles.

In his office, he recalled another era, when three different Republican figures — Justices Sandra Day O'Connor, David H. Souter and Anthony M. Kennedy — largely shared his fundamental approach to the law.

“Sandra, David — I mean, both of you, I would agree, not necessarily on the outcome in each case, but just on how you approach it,” Justice Breyer said. “And Tony too, to a large extent.”

Justice Breyer retired somewhat reluctantly, under pressure from the liberals who wanted to ensure that President Biden could name his successor and that the court's vast conservative majority, currently 6-3, would no longer be lopsided. Justice Ketanji Brown Jackson, Justice Breyer's former law clerk, now occupies his seat.

Justice Breyer, appointed by President Bill Clinton in 1994, returned to Harvard Law School, where he taught before becoming a judge. But he said he misses his old job.

“When you're a professor, you're mostly involved in what people have already decided in the past,” he said. “When you're a judge, that matters to you too, but what you decide will impact the present and the future. And it's hard. Because you don't really know how it's going to go. There you have to do your best. I like this kind of work.

He shrugged his shoulders, seeming to contemplate the passage of time. “What can you do?” He asked. “It’s the human condition.”

Critics of Justice Breyer say his approach gives judges too much freedom to turn their preferences into law. I asked him for an example of a case in which the law required him to reach a conclusion contrary to his personal views.

“What about all the capital punishment cases?” He asked. Although he urged the court to a 2015 dissent in reconsidering the constitutionality of the death penalty, he did not adopt the practice of some previous judges of dissenting in every capital case. “That doesn’t mean I approved,” he said.

He added, more generally, that he hoped his book would reach both a wide and a narrow audience.

“I wish people would read it,” he said. “I wish you would agree with me. It would be the same for each author. I would even like the members of this court to read it and say, “Oh, that's not a bad point. This is not a bad point. And that's all.”

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