Retired SCOTUS Justice Sounds the Alarm About Direction of the Court
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The Supreme Court is headed in the wrong direction, retired Associate Justice Stephen Breyer claims.
In a new book and during a late-February interview with The New York Times, the 85-year-old liberal criticized the three justices appointed by former President Donald Trump, lashed out at the decision reversing Roe v. Wade, and made comments that were disparaging of the U.S. Constitution.
The Times reviewed the book and spoke to Breyer, who spent almost 26 years on the bench after he was nominated to the court in 1994 by then-President Bill Clinton.
In “Reading the Constitution: Why I Chose Pragmatism, Not Textualism,” Breyer ripped the 2022 Dobbs v. Jackson decision that returned the issue of abortion to the states.
“The Dobbs majority’s hope that legislatures and not courts will decide the abortion question will not be realized,” he wrote in his book, according to the Times.
While speaking to the newspaper, Breyer said repealing Roe v. Wade left “too many questions” as it pertains to the legality of abortion in states that permit it and those that have placed limitations on killing an unborn child.
“Are they really going to allow women to die on the table because they won’t allow an abortion which would save her life?” he said. “I mean, really, no one would do that. And they wouldn’t do that. And there’ll be dozens of questions like that.”
When speaking broadly about the court he left in 2022 to make room for Associate Justice Ketanji Brown Jackson, Breyer said, “Something important is going on.”
Paraphrasing him, the Times reported the retired justice believed the court “has taken a wrong turn” and it is “not too late to turn back.”
“Without naming names, he seemed 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 how they approach the role,” reporter Adam Liptak wrote.
Breyer wrote in his new book that as of late, “major cases have come before the court while several new justices have spent only two or three years at the court.”
“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,” he said.
While those two terms aren’t identical, they describe similar views of interpreting the Constitution.
“Originalists, like textualists, care about what people understood words to mean at the time that the law was enacted because those people had the authority to make law,” Barrett wrote in 2020.
In contrast, Breyer favors what he calls “pragmatism.”
“Justice Breyer recalls [former Chief Justice John] Marshall’s exhortation that the Constitution must be a workable set of principles to be interpreted by subsequent generations,” the publisher’s description of “Regarding the Constitution” says.
The retired jurist wrote in the book, “First, [originalism] 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.”
“Second,” he said, “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.”
On the Constitution as a whole, Breyer told the Times that “half the country wasn’t represented in the political process that led to the document.”
While Breyer criticized the court, he did say he does not necessarily believe its newer members are deciding cases based on partisan politics.
The former justice is teaching at Harvard Law School, where he was an instructor before he joined the court.
He told the Times he often misses sitting on the bench.
“When you’re a professor, you’re mostly involved in what people decided already in the past,” Breyer said. “When you’re a judge, you’re also interested in that, but what you’re deciding is going to affect present and future.”
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