Justice Breyer, Off the Bench, Sounds an Alarm Over the Supreme Court’s Direction

Former Justice Breyer Expresses Concern Over Supreme Court’s Current Trajectory

Justice Stephen G. Breyer’s office at the Supreme Court may not be as magnificent as the one he had before retiring in 2022, yet it remains impressively cozy. It still features a working fireplace, which was warmly lit during my visit on a mild afternoon in late February to discuss his upcoming book.

In previous conversations, Justice Breyer’s thoughts sometimes meandered and were not always clear. However, in our latest meeting, he was straightforward. He expressed his concern about the Supreme Court’s current direction.

He emphasized, “Something significant is happening.” According to him, the Supreme Court has veered off course, but it’s not too late to correct its path.

His book, titled “Reading the Constitution: Why I Chose Pragmatism Over Textualism,” is set to release on March 26. Interestingly, this is the same day the Supreme Court will hear a major abortion case related to the accessibility of medication for pregnancy termination.

The book pays a lot of attention to the Dobbs v. Jackson Women’s Health Organization decision of 2022. This ruling revoked the constitutional right to abortion. Justice Breyer, who disagreed with this decision, criticized it for naively handing the abortion issue back to the political realm.

During our interview, he was even more emphatic. He questioned whether it was realistic to expect legislative bodies to handle the complex issues surrounding abortion, especially in life-threatening situations.

The book critiques the current court’s approach to law, which he believes overly focuses on the literal text of statutes and the Constitution. This approach, he argues, lacks a practical understanding of their purposes and consequences.

Without naming anyone specifically, he seemed to urge the three justices appointed by President Donald J. Trump—Justices Neil M. Gorsuch, Brett M. Kavanaugh, and Amy Coney Barrett—to rethink their judicial philosophy.

He noted that the court has faced major cases with the recent addition of new justices. He suggests there’s still time for these justices to consider broader legal principles beyond textualism and originalism.

Justice Breyer also pointed out the growing public distrust in the court, as indicated by opinion polls. He critiqued textualism and originalism for their narrow focus, which ignores the evolving values and lessons from our past.

In his chambers, he reminisced about a time when justices, regardless of their appointing party, shared a more holistic approach to law. He fondly remembered Justices Sandra Day O’Connor, David H. Souter, and Anthony M. Kennedy.

Justice Breyer retired somewhat reluctantly, influenced by liberals who wanted to ensure President Biden could nominate his successor. Justice Ketanji Brown Jackson, a former law clerk to Justice Breyer, has since taken his place.

Now back at Harvard Law School, Justice Breyer admits he misses the judiciary’s direct impact on the present and future.

Reflecting on his career and the nature of judicial work, he mused on the inevitability of change and the human condition.

Despite criticism for allowing too much judicial discretion, Justice Breyer defended his approach. He shared an example from capital punishment cases, showing his commitment to the law even when it conflicted with his personal beliefs.

He hopes his book will resonate with a wide audience, including his fellow justices, encouraging them to consider his perspectives on the law’s interpretation and application.