At Law & Liberty, John McGinnis: Justice Breyer’s Problematic “Pragmatism” (reviewing Stephen Breyer, (Simon & Schuster 2024)). From the introduction:
Nothing has improved Steven Breyer’s legal theory work so much as leaving the Supreme Court. His two books of scholarship as a justice were busts. Active Liberty claimed that the Court should shape its jurisprudence to advance democracy. But most of what was interesting about that proposition had already been stated more eloquently and persuasively by John Hart Ely in his brilliant book, Democracy and Distrust. And unlike Breyer, Ely acknowledged forthrightly that his principles required him to say that Roe v. Wade was egregiously wrong as a legal decision even if he favored abortion rights as a political matter. Breyer never analyzed Roe at all.
Next, in The Authority of the Court and the Perils of Politics, Breyer argued that the Court could maintain its authority only by avoiding acting in a political manner. But he never unpacked the meaning of the inherently vague term “political.” Worse still, he never considered why a jurisprudence that advances inherently vague terms (like “democracy” for instance) should not be seen as more political than one that sticks to the text.
Now, less than two years after resigning as a Justice, Breyer has written Reading the Constitution: Why I Chose Pragmatism, not Textualism. It has the virtue of providing a candid, clear, and comprehensive exposition of his approach to both statutory and constitutional interpretation. Moreover, some of his criticisms of too-wooden textualism are well taken. Nevertheless, while much better than his previous efforts, the book has two substantial failings. First, he often makes strawmen of the views of his opponents, particularly when discussing originalism. And he inadvertently shows how radical his rejection of textualism is. His views sometimes cannot even attract the more liberal justices on the Court, and they would often require rewriting rather than interpreting statutes.
Posted at 6:12 AM