March 1, 2024
An esteemed jurist assesses the limitations of textualism. Breyer, who retired in 2022 after 28 years on the U.S. Supreme Court, offers a cogent explanation of judicial reasoning, focusing particularly on the difference between textualism--now dominating the current Court--and pragmatism, which is his guiding principle. In making decisions, all judges consider "text, history, precedent, tradition, purposes, values, and consequences." Textualists, though, "ask the judge to look, almost exclusively, to language. And their main point is that statutory (or constitutional) words mean what a reasonable person would have taken them to mean at the time they were written." Breyer, however, sees this perspective as myopic. "Without ignoring the text," he explains, "I normally put more weight on the statute's purposes and the consequences to which a particular interpretation will likely lead. I will sometimes ask how a (hypothetical) 'reasonable legislator' would have interpreted the statute in light of its purposes." He also considers "how those affected by the decision will react." The author carefully examines many cases throughout the Court's history, including Dobbs, which overturned Roe v. Wade, and cases for which he wrote the dissenting view. He argues persuasively that overruling earlier precedent can lead to chaos, because in departing from settled law, "the court could look at all previous decisions." Breyer's patient explanation of cases reveals the intricacies of judicial decision-making, even for textualists, who focus on the "highly complex" wording of the Constitution. Although he argues persuasively against textualism, he is reluctant to foresee a paradigm shift toward textualism incited by the present Court. Cautiously optimistic, he predicts that with time and experience, the new Court judges will realize the limitations of this approach and understand that "the ultimate object of law is to allow human beings to live peacefully and prosperously together in communities." A deeply informed analysis of judicial history.
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March 18, 2024
In this vital guide to judicial interpretation, former Supreme Court justice Breyer (The Authority of the Court and the Peril of Politics) argues against textualism, an approach conservative justices take toward jurisprudence, and advocates instead for the pragmatic method he adopted in his decades on the bench. Textualists claim to rely on the “plain meaning” of statutes, but Breyer contends that this approach elevates isolated statements made in an otherwise fluid piece of text into nonsensical “rules”; whereas Breyer’s “purpose-oriented approach” takes into consideration each statement’s meaning in the context of the law’s overall “purposes, consequences and values.” He walks readers through Supreme Court cases where common-sense laws were struck down by textualism, such as one concerning whether the FDA could promulgate anti-tobacco regulations to protect children. Most fascinating of all is his foray into judicial history (before the late 20th century, undertaking historical research to discover a law’s intended meaning was commonplace for judges; now it’s rarely done) and foreign counterexamples that highlight the ouroboros-like nature of the U.S. legislative process, where laws are continually being passed that are destined to be misinterpreted. In the U.K., for instance, government officials work to standardize legislative language before it is implemented, reconciling it with judicial interpretation, and thereby obviating the need for such fierce debate over intended meaning. Bursting with insight, this is sure to be an instant classic in legal circles.