On Thursday March 28 at the NCC, Jeffrey Rosen sat down with Justice Stephen Breyer to discuss his new book, Reading the Constitution: Why I Chose Pragmatism, Not Textualism. Justice Breyer deconstructs the textualist philosophy of the current Supreme Court’s majority and makes the case for a better way to interpret the Constitution based on pragmatism.
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Today’s episode was produced by Tanaya Tauber, Lana Ulrich, and Bill Pollock. It was engineered by Advanced Staging, Greg Scheckler, David Stotz, and Bill Pollock. Research was provided by Samson Mostashari, Cooper Smith, and Yara Daraiseh.
Participants
Stephen G. Breyer is a former associate justice of the Supreme Court who served there for 28 years until retiring in 2022. He also serves as honorary co-chair of the National Constitution Center’s Board of Trustees. He is the author of several books, including The Court and the World: American Law and the New Global Realities and The Authority of the Court and the Peril of Politics. His most recent book is Reading the Constitution: Why I Chose Pragmatism, Not Textualism.
Jeffrey Rosen is the president and CEO of the National Constitution Center, a nonpartisan nonprofit organization devoted to educating the public about the U.S. Constitution. Rosen is also a professor of law at The George Washington University Law School and a contributing editor of The Atlantic.
Additional Resources:
- Justice Stephen Breyer, Reading the Constitution: Why I Chose Pragmatism, Not Textualism (2024)
Excerpt from Interview: Retired Justice Stephen Breyer reflects on the evolving role of government and agencies from the New Deal to present, emphasizing the shifting public sentiment and needs over time, suggesting that societal changes will shape their effectiveness and direction.
Stephen Breyer: Well, it could happen, and I wouldn't think they were good consequences. But remember when they change, the big movement towards agencies, towards big central government or bigger central government and shifting power to Washington came during the New Deal. And the New Deal was itself a paradigm shift from a previous way of looking at the court a way that made some sense at the time. That's sort of interesting. Alan Greenspan wrote a very interesting book to me about the history of capitalism in the United States. And he says, and he's pretty board documented, that before the Civil War, this country was very poor, really poor, in the South too. They couldn't afford to go to school, they couldn't afford a church. It was a very poor country. But after the Civil War, a boom, inventions, electricity, power, railroads, and moreover ways of financing those activities. So across the country they could spread and people became rich.
And from one of the poorest countries in the world, it became one of the richest. So in my imagination, I'm thinking of that Lochner court, the court everyone despises, but they're sitting there at a time when they're thinking the movement against property, the movement against contract, the movement against laissez faire, that's going to kill the goose that's laying a golden egg. And so they turned against it, but by the time you get to the New Deal, the season's changed. You want to believe in laissez faire and that all the businesses alone in a period of 24% unemployment when people are on the breadlines, when the Great Depression is right there. No, and who said this? Roosevelt said it, but I can't remember where I read it. He said, try something. If that doesn't work, try something else. And if that doesn't work, try something else again, but keep trying. Now, there's a season, there's a mood and that's going on in the New Deal. And that's going on in a movement away when you go to the court that it changes attitudes. And so even with what you say, maybe you go there and say the worst agency in the world ever was OSHA, because OSHA's supposed to save people from working. And they have a rule which says, paint the top three rungs of a ladder red so no one walks off the top. Okay, they did have a rule like that.
So maybe they're not perfect, but by the time you try to get rid, I had a law clerk once who looked up every agency you could find where the people in the lower parts of the agency had tenure and they were appointed by the people in the higher part that had tenure. And that was an issue in the case. And we found pages and pages worth and all that's gonna change. Really, all that's gonna change. You see, I'm skeptical of how far they can go and how far they will go. And I think the world, I think life will catch up. I think life will show them. And I think by the way, that the changes in administrative law, and I'm so glad someone in this group took my administrative law class and, but in administrative law that isn't exactly textualism. The words there in the Constitution are legislative, executive, and judicial. And that doesn't tell you too much which way to go in these cases anyway. But they still might have the attitude you have, which is a different kind of a problem.
Excerpt from Interview: Breyer discusses legal interpretation challenges, such as defining "costs" in a statute and interpreting the Second Amendment's relevance to New York's gun law, emphasizing the difficulties judges face with historical and technical details.
Stephen Breyer: Yes. Okay, this is the case. There is a statute that says if you have a child and that child is handicapped, the public school system has to give him an appropriate education, I.e. A good education. And if you think they're not doing that, you can bring a lawsuit. And the plaintiff in that case did, and she won. She won. And they had to change it. Well, buried knee, he said we have most of the cases we have are pretty technical, a lot of them, and they're pretty far down and they don't get into the newspaper, but that's the majority. Alright. Down it says in the text somewhere, it says, if she wins, what she gets? Costs. And she says to the judge, “Judge, one of the things that I had as a cost was a $29,000 bill from the educational expert.” Does she get that from the school board? Is that part of the cost? Or do they just mean legal costs? And is that a legal cost?
Well, I'll tell you how we're gonna answer that. Let's read the word. Guess what the word was? Costs. Okay, we didn't read it hard enough. Let's say it twice. Costs, costs. Now we've got the answer. Oh no. Three times cost, cost, cost. Okay. Ah, you see, I say where are we in this? We're in mixed up at best. And that's not going to tell you the answer to that. Or did you know, you may not know, I shouldn't tell you this, but there are a lot of federal officers you can bring lawsuits against and maybe even recover some money. Don't tell anyone I said that, but it's possible. It's possible. And then there's some exceptions. You can't sue these people who have this job, which people?
One of the exceptions says that you cannot sue for keeping property. It was a officer of customs and excise or any other law enforcement officer, ah, who do they mean by that last phrase? The cop on the beat, a German police officer. No, they don't mean that, but a cop on the beat or those associated with customs and excise? So I say, oh, say it three times. Okay, I won't do it. But you see the problem, you see the problem, or let's go into the realm that the press will actually write about. Let's go into the realm of guns. That when I wrote a long dissent with Justice Kagan and Justice Sotomayor. New York has a law which says you cannot carry a gun outside your house, concealed or not concealed. Does that violate the second amendment, which says "A well-regulated Militia, being necessary for the security of a free State, the right of the people to keep and bear arms, shall not be infringed." I don't expect you to memorize all that. But you see, in an earlier case, over our dissents, three of us, four of us, then.
He said, that has to do with militia. It doesn't have to do with holding a gun under your pillow to shoot a burglar. Five said it did, four said it didn't. I think that was the number. So we passed that. Okay, so now what about New York's law? And the court says, in the opinion, go look back at history and just history. Look at what, when this was passed, a reasonable person would've thought it meant, I said, oh, okay, that sounds good. What do I look at? So I started looking at a few of the old gun or weapon or what about a halberd? Does that count? A skill ladder? And then there was Asian fire, which you took and threw over the walls hoping to burn up somebody in. Was that the origin of artillery, got me. You see, I'm not very good at history, or at least not skill bar or skill ladders or whatever they are. And to ask the judges to decide on that way is not a good idea in my opinion, because they don't know.
They're not historians, and you'll get briefs. The briefs will go in opposite directions and the historians will disagree. And then you have to decide about what a skill ladder was or whether it's a relevant no. What I wanted to write about, and I did, I wrote about it, yeah. In dissent. I said, I'd like it to be relevant here, that the United States of America has 400 million guns. We are number one, number one. Number two is Yemen, I think. Okay? Look at the number of deaths and the policemen who are killed and the home accidents and the spousal problems. My God, it is endless, endless. I say, in my opinion, that kind of thing is relevant. I'm not saying you're just going to look at that. Of course, we'll look at the words. If the word in a statute or the word in the Constitution, it's not in the Constitution, but I suppose it was carrot.
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