“To place determinative weight on the way in which 18th-century speakers used particular words,” Breyer says, “is regressive.” He’s right — and perhaps that’s why the conservative justices like originalism so much. For anyone who believes that progress has gotten out of hand, “regressive” is arguably a point in originalism’s favor. “My examples show why a judge should often emphasize purposes,” he writes, as if he’s identifying something that has been overlooked or rejected. Isn’t it possible that his conservative colleagues also emphasize purposes, albeit very different ones?
Originalists deny that purposes matter to them, since purpose, as the originalist justice Antonin Scalia once put it, fails to provide an “objective basis for judging”; they like to say that they’re simply sticking closely to the text, and Breyer is palpably eager to take their stated intentions at face value, even when textualism can also function quite nicely as ideological cover. He keeps repeating the argument that “purpose-related tools” can make “our democracy more workable.” The word “workable” is used so many times in the book that it becomes a poignant refrain — that of an optimistic, pragmatic liberal jurist who wants to believe that if only he is clear enough, he can get his fellow justices to recognize that they are ultimately committed to the same thing.
Does Breyer, who is so attuned to the irreducible complexity of the world outside the Supreme Court, truly believe that the world inside is so simple? Given his decades of experience, I find it hard to imagine he does — but then he still seems flummoxed by the Supreme Court’s right-wing turn. At his most baffled, he starts firing off strings of rhetorical questions, asking plaintively how anyone could ever want “a world in which no governmental effort is made to cure environmental, medical or safety-related ills?”
In an interview with Adam Liptak of The Times last week, a beseeching Breyer sounded similarly perplexed. After all, he said, the decision to override Roe was bound to have cruel consequences: “Are they really going to allow women to die on the table because they won’t allow an abortion which would save her life? I mean, really, no one would do that. And they wouldn’t do that.”
There is a profound and generous kindness embedded in his remarks, a determination to think the best of people, but his incredulity makes you wonder what alternate universe Breyer is living in. When it comes to denying a woman the right to a life-saving abortion, not only are there “really” some people who “would do that”; there are six people in black robes who effectively did.
READING THE CONSTITUTION: Why I Chose Pragmatism, Not Textualism | By Stephen Breyer | Simon & Schuster | 335 pp. | $32
