Former Supreme Court justice warns obsessive 'textualism' will 'turn law into chaos'

26 March 2024

When President Bill Clinton appointed former U.S. Supreme Court Justice Stephen Breyer in 1994, the High Court was already leaning to the right. But some of the GOP-appointed justices of that era — including Ronald Reagan appointees Anthony Kennedy and Sandra Day O'Connor — were, critics of the 2024 Roberts Court say, more nuanced in their views than far-right ideologues like Justices Clarence Thomas, Samuel Alito and Amy Coney Barrett.

Breyer, now 85, resigned from the High Court in 2022, when he was replaced by Joe Biden appointee Ketanji Brown Jackson. And he has been highly critical of the ideology that now dominates the Court: originalism, also known as
"textualism."

Breyer voices some of that criticism in his new book, "Reading the Constitution: Why I Chose Pragmatism, Not Textualism."

And he explained why he considers textualism fundamentally flawed during a March 25 appearance on MSNBC's "Morning Joe" and an interview with CBS News.

Breyer has cited the overturning of Roe v. Wade in Dobbs v. Jackson Women's Health Organization as a prime example of the problem with the High Court's current direction.

CBS News reporters Jan Crawford and Kelsie Hoffman quote Breyer as saying, "You overrule too many cases, and law will turn into chaos. And before you know it, you won't know what the law is. What is the principle? Is the principle that you think those cases decided then were really wrong, egregiously wrong, totally wrong? And how are you going to decide that?"

Nonetheless, Breyer maintains that disagreements and all, the Court's Democratic and Republican appointees are civil to one another when discussing a case. According to Breyer, no one on the Court speaks a second time until everyone else has spoken once.

Crawford and Hoffman quote Breyer as saying, "It's important because then, everyone feels they've participated. Everyone feels that the others have a chance to listen to them."

During his "Morning Joe" appearance, Breyer laid out his problems with "textualism."

The former High Court justice told hosts Joe Scarborough and Mika Brzezinski, "Textualism…. says: All you do is read the words (of the Constitution). Just read the words and do what they say…. Many believe that. I do not. And there is another, more traditional way of looking at those words, and that is: Someone wrote them, what was their purpose? What are their consequences?.... That's what I call pragmatism, but it's much more complex than that."

Read CBS News' full report at this link.

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