Justice Breyer Says SCOTUS Risks Creating “A Constitution That No One Wants”

CHRISTIANE AMANPOUR, CHIEF INTERNATIONAL ANCHOR: Now, all over the world, women-led social and peace movements are on the rise, while at the same time, the fight for women’s fundamental rights continues, including in the State of Florida, which has cleared the way for the state’s six-week abortion ban to take effect. But in a separate ruling, its Supreme Court justices have allowed the issue to be put to voters in November for a proposed constitutional amendment. Meanwhile, in the first abortion-related case since overturning Roe v. Wade, the U.S. Supreme Court appears skeptical of a nationwide ban on the drug that’s used for medical abortions. Interpreting the Constitution for modern America is, of course, a divisive legal dilemma of the times. And the former Supreme Court Justice Stephen Breyer tackles this head on in his new book, which he speaks about next with Walter Isaacson.

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WALTER ISAACSON, CO-HOST, AMANPOUR AND CO.: Thank you, Christiane. And Justice Stephen Breyer, welcome to the show.

STEPHEN BREYER, AUTHOR, “READING THE CONSTITUTION” AND FORMER ASSOCIATE JUSTICE, U.S. SUPREME COURT: Thank you very much.

ISAACSON: So, you have this new book, “Reading the Constitution.” And you talk about the problems of being too much involved in textualism. Explain to me what textualism is, and is that the same as originalism?

BREYER: When you read a statute, or you read the constitution, there are some words. Look at those words and you say, what would an ordinary person have thought those words meant at the time they were written? Say 1788, 1789. And real textualists say don’t look at anything else. Just look at these words, things related, maybe to those words, not much, but read the words. And originalism says, yes, we agree with that, but in the constitution, there are some rather vague words, the right to keep and bear arms is not actually specific, not very specific, and the freedom of speech is less specific yet. So, what we do is go back in our minds to the time that those words were written, 1788, 1787, 1869 for 14, 15, 16, or around that time after the Civil War or at the founding of the country, and say, what would an ordinary person have thought they meant at that time?

ISAACSON: And you in this book pushed back on that and said, we should put a little bit — we should put more emphasis on the purpose.

BREYER: Yes.

ISAACSON: And by the way, on effect, the pragmatic effect and shouldn’t just be parsing the words, we should say, what was the purpose of it and what pragmatic outcome it will have? Explain the difference in that approach.

BREYER: Well, the differences that the statutes that we interpret in the Supreme Court are usually not clear in terms of their text. If they’re so clear, why are they in the supreme court? We only take cases where lower court judges have come to different opinions about what they mean, and with the constitution too, same kind of a problem, but even more so. So, I don’t think too often the text helps very much, and it can lead you astray.

ISAACSON: Well, let’s take some of the criticism that an originalist or a textualist would have of your pragmatic approach, which is, man, that could just lead you down a path where you’re not emphasizing what the words actually say. You’re just trying to say, what do I think would be good? What I do think would be pragmatic?

BREYER: Yes.

ISAACSON: Isn’t that dangerous to allow judges to imposed their own pragmatic view of the world instead of following the text?

BREYER: Well, the word pragmatic is not exactly the right word either. And if you have the patience to read the whole thing, you’ll see that what I’m saying is, yes, look at the purposes. Look at the consequences. Look at the values that underlie it, because that’s the better alternative. What about trying the right to bear arms? We had a case involving a New York law. I was in dissent. But the majority said, here is what we’ll look to. We’ll look to what the founders intended at the time. They wrote these words. That was Madison. In an earlier case, they said what they’d intended. They intended to allow you to keep a pistol under your pillow. I dissented in that because I don’t think they meant that one little bit. But what I’m objecting to now is not that first case. I’m objecting to what they’re saying at this moment. Just look at the history, in the 18th century, earlier, maybe a little later, the history of what that phrase, what kind of weapons was it addressing itself to? So, I said, OK. I’ll look it up. You know what — Hildebrand (ph) or a Hildebrand (ph), that’s it. A scale ladder, an Asian fire, which you threw over the wall to burn people up on the other side of the wall. I mean, is that related to or not related to a pistol or artillery, or ought to tell you the truth? I have no idea what those weapons were that were being used in 1710 or something, or in 1650, or during the Hundred Years’ War. You see, you, Mr. Textualist, are asking me to turn awfully important cases upon matters where I am not an expert because I’m not an historian. I’m a judge. I can do this. I can go look at a couple of other things. Did you know, Mr. Majority, that 400 million guns are floating around this country? And those 400 million guns puts us, number one, on gun ownership. And those 400 million guns, a lot of studies show cause an awful lot of trouble. They can cause deaths, they can cause illness, they can cause harm of all sorts to policemen, to spouses, to everybody under the sun. Now, I think that that fact and facts like it are relevant when you’re deciding whether the New York gun law is or is not consistent with your idea of that Second Amendment.

ISAACSON: Well, wait, wait. Let me push back on that because the law — the constitution says we have a right to bear arms. It doesn’t say, gee, let’s look at gun ownership and whether it’s good or bad or not. Why would that matter when it comes to a constitutional question?

BREYER: Oh, do you think it says that everybody has a right? I mean, if you’re in a mental hospital, do you have a right to keep your arms, to keep guns around? Do you think you have a right after you shot 14 people? Do you think you have a right to shoot somebody when you’re trying to steal some money? Do you think you have a right — you see, I can go on and on and on. No one, I think, will claim that everyone has a right to bear arms. You have to figure out which laws are permissible under the Second Amendment, just as you have to figure out under the First Amendment. What speech is permissible? And what speech is not? Hey, let’s rob the bank. That speech, when that’s seriously meant, isn’t permissible. Some is permissible, some is not. That’s the job of the judge, to draw the limits and to work out what the statute means in terms of limits. So, no one, textualist or non- textualist, is going to get away from that problem. In Dobbs, they went back and they overruled two cases, cases that allowed abortions, Roe v. Wade and Casey. And so, I asked the imaginary Mr. Textualist, Mr. Textualist, what cases are you going to overrule? Are you going to rule — overrule every preceding case that doesn’t use your originalist or textualist method? All of them? Do you know how many there are? I already said it. All of them. No, I exaggerate. Almost all of them. You mean you’re going to overrule all those and won’t have any law left? Well, no, they won’t overrule all those. So, I say, which of the many that you could overrule, perhaps? Which are you going to choose to overrule? And my guess is the answer is going to be the ones that are really wrong in our opinion. Oh, really wrong in your opinion. And how are you going to decide that? Who’s going to decide that? You’re going to decide that. Now, will you just choose what you like or will you follow the law? Doesn’t that sound like the question you asked of me a little bit earlier? The question that you said, oh, textualism will stop me. I’ll have to be honest because it will give me no possibility of substituting my own judgment. You have the same problem, don’t you? And anyone who doubts it, go read Dobbs.

ISAACSON: Let me take what may be the biggest issue now in which there’s a clash between a textualist approach and a purpose-driven approach. And that’s a whole arena of affirmative action and race-based thinking. The text of the Civil Rights Act is pretty clear. It says there cannot be discrimination on the basis of race, color, religion, sex, or national origin. And so, if you have affirmative action, perhaps that’s discriminating based on race. On the other hand, the purpose of that law was to bring African- Americans more into society. How do you balance that when you take a more purpose or pragmatic-driven approach?

BREYER: Well, it will depend on the particular case. What we’ve said, because Ruth and I wrote several joint, her opinion, and parents involved in other cases, and —

ISAACSON: Ruth Bader Ginsburg.

BREYER: And we say roughly what you say, that there is a difference in terms of the 14th Amendment, which says every state shall not deny any person equal protection of the law. There is a difference between discrimination, which keeps people out, hurts them. separates the races, and that kind of discrimination which is designed to bring them in, because bringing them into society and creating one society out of a world that had been divided, slavery and non-slavery, Jim Crow, et cetera. Bringing them in so we have one country where we get along together, that was an objective of the 14th Amendment. And when you have something, discrimination, maybe call it discrimination, maybe say as Lewis Powell said in Bakke, he said, there’s room here. There is room for a town, a city, a state to work out a good way to bring these different races together in a world that previously had been divided legally. You see, that’s the job. And what do you want? You want a mathematical rule? You won’t get it. Law is not hard science. It is not calculus. You have human beings who are looking at the facts, the figures, yes, the statute, the constitution, the values that underlie them, and you often have cases that require that judge to think, in terms of those values, does this statute go too far? Too far. That’s the skill or the effort.

ISAACSON: Justice Antonin Scalia was sort of one of the great advocates of the textualist approach. You’ve been one of the great advocates of the more pragmatic or purpose-driven approach. But you all were pretty good friends, and you used to discuss it publicly and privately. Tell me about that.

BREYER: No, we would. We liked it. We enjoyed it. The way it would sort of go, if I’d take bits of that conversation, I’d say, you know, I don’t say that the importance of free speech changes over time. I say, George Washington didn’t know about the internet. The facts changed. And he would say, I knew that. And he says, well, if we follow your system of, say, taking into account, I mean, do we take into account the fact that when they wrote these amendments, 18th century, civil war, half the population, namely the women, were not part of the political process, and more than that, there was slavery. Much of that time, and Jim Crow, do we take that into account? Maybe. And he’d say, you see, it’s too complicated. Too complicated. You might be able to think you can do it, but nobody else can. And I say, well, maybe others have, I’m not the only one, but if we take your system, we’re going to end up with the constitution that no one wants. Laws are designed, they’re a human institution designed to help now 320 million Americans of every race, religion, point of view, help them live together peacefully and we hope prosperously. And in the constitution, we have values. The values don’t change very much. The facts change. Those values, the democracy, human rights, separation of powers and no one becomes too powerful, a degree of equality, yes and the rule of law. All that’s right there. It’s right there in this document here, there it is. All right. And Marshall and the other founders, they said, they — we don’t want that to change, but he says as well, the future will bin (ph) problems that we can see now only dimly, if at all, and these values should work for those problems not yet seen. That’s all in that word, it is a constitution we are expounding which no one knows what it means but it’s important. And it’s down in the Supreme Court, written on the wall, and that is what my response is to Justice Scalia.

ISAACSON: We’ve seen a lot over the course of history big ideological shifts on the court, I think especially say from the Taft Court to the New Deal court is a big shift. Do you think we’re undergoing a big shift now?

BREYER: I think that’s a very good question. I think the Taft Court, you go back to 1900, and you’ll see a United States of America that had just grown from one of the poorest countries in the world to one of the richest, through inventions, through methods of marketing, through methods of finance. And I think the Taft Court was worried and emphasized the words property and contract, unless they fair, first two words in the constitution, because they didn’t want to kill a goose that they believed was laying a golden egg. Nobody thought that. By the time of the Great Depression, by the time of Roosevelt’s New Deal court, and that New Deal court did not believe, because very few people in the United States believed that what this is all about is keeping laissez- faire and letting companies do whatever they want. And so, they decided the cases somewhat differently. The person who described what was going on there, Paul Freund, another great constitutional scholar. And he said, as far as politics is concerned, he’s talking about, no judge, no judge decides according to the temperature of the day, but every judge is affected by the climate of the season. And I hope, but I can’t prove, that three years from now, four years from now, people will see that this textualism and originalism pushed to a pretty strong extreme where you can’t use other things, that it doesn’t work, that it doesn’t take any account or enough account of the fact that women didn’t have the right to vote in these words in the constitution for the most part were written, that trying to follow textualism in some of these statutes and some of these constitutions and looking to nothing else but text is going to undermine the values that this document sought to keep and work into the future, that it’s going to make it more difficult for Congress to pass laws using sometimes abstract phrases so that you can adapt those laws more easily to a future with changing problems and changing circumstances. I think they’ll discover that that’s a pretty hard road to follow, a pretty hard road to travel. And so, it will diminish. But if it doesn’t happen, I worry that people will have less reason to follow a rule of law.

ISAACSON: Mr. Justice Breyer, thank you so much for joining us.

BREYER: Thank you.