Stephen Breyer is doing what few other retired Supreme Court justices have dared: He’s publicly criticizing the justices who are on the bench.
In particular, in a recent interview and in his upcoming book “Reading the Constitution: Why I Chose Pragmatism, Not Textualism,” Breyer seems to take aim at the so-called “originalism” of the court’s three most recent Republican appointees: Justices Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett.
While they, like other conservative jurists on the court, embrace the view that the text of the Constitution must be read in terms of the original meaning of its drafters, Breyer wrote in his book that their approach is misguided.
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“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.”
In a recent New York Times interview, Breyer was more pointed, noting that the real-life consequence of the court’s ruling overturning Roe v. Wade is to allow “women to die on the table.” While blunt, Breyer’s candor about the state of the court is refreshing and much needed.
But let’s face it, the conservatives aren’t likely to pay much attention to their liberal former colleague.
In the interview, Breyer named three justices with whom he shared the same careful, thoughtful, and measured approach to constitutional interpretation — one not tethered to fixed, centuries-old meanings. And they were all appointed by Republicans: Justices Sandra Day O’Connor, David H. Souter, and Anthony M. Kennedy.
O’Connor passed away in December after a long battle with advanced dementia. But the other two justices, like Breyer, are retired. They have not spoken publicly about the current court as Breyer has chosen to do. And that’s a shame, because the court’s newest justices could learn a lot from them.
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Souter did explain his approach to tackling tough constitutional questions in a 2010 Harvard University commencement speech. He said trying to determine the constitutional rules of the road only from the original meaning of its texts is not only unwise, it is so unrealistic as to be impossible.
“The Constitution is no simple contract, not because it uses a certain amount of open-ended language that a contract draftsman would try to avoid,” Souter told the graduates, “but because its language grants and guarantees many good things, and good things that compete with each other and can never all be realized, all together, all at once.”
He used as an example the famous Pentagon Papers case, which placed two clearly stated constitutional interests at odds with one another: the First Amendment’s protection of the press from prior restraint and the government’s constitutional duty to ensure the nation’s security. For one to win, the other had to give. The court couldn’t just read the text. It had to make a hard choice, and that choice ultimately went in favor of the press and its right to publish the papers.
In other words, justices can’t just look at the text of the Constitution and history. They need to make judgments based on the facts and circumstances before them.
Souter noted that that was what happened when the court decided Brown v. Board of Education, overturning the “separate but equal” doctrine of Plessy v. Ferguson. He noted that Plessy was decided by justices who lived during the era of legalized human enslavement. But the justices in Brown lived in a world where forced segregation was seen by the justices through a different lens. The constitution hadn’t changed. The nation had.
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Kennedy, in his opinion in Obergefell v. Hodges recognizing the constitutional right of same-sex couples to marry, didn’t get hung up on the fact that there were no legal gay marriages during the Framers’ time. He did note that “the right to marry is fundamental because it supports a two-person union unlike any other in its importance to the committed individuals.” He also noted the greater tolerance in American society for same-sex couples and the need to safeguard their children. Because of that, Kennedy wrote, denying gay couples the right “conflicts with a central premise of the right to marry.”
Contrast that with recent rulings by the court on issues such as gun control and abortion access. Not only had the understanding of the substantive due process right of privacy that Roe v. Wade turned on not changed, but it had been relied upon for half a century by people of reproductive age, their families, and health care professionals. And the notion that the Second Amendment left room for firearms to be, in the words of the Constitution, “well-regulated” was assumed to be so clear that a federal assault weapons ban was passed and remained in effect for a full decade until it expired in 2004.
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In both cases, the only thing that changed was who was serving on the court. As the bench’s ideological makeup shifted right, its view of the Constitution became so strained as to allow little room for abortion access protections or common-sense gun control.
The newest justices can learn a lot from the living justices who came before them — particularly Kennedy, for whom two current justices — Gorsuch and Kavanaugh — clerked. I would love for Kennedy and Souter to join Breyer’s public chorus. But at the very least, maybe they can give their mentees a call.
Kimberly Atkins Stohr is a columnist for the Globe. She may be reached at kimberly.atkinsstohr@globe.com. Follow her @KimberlyEAtkins.
