Former Supreme Court Justice Stephen Breyer criticized his colleagues on the high court over their interpretation of the Constitution.
The former justice, who retired in 2022, is set to release a book titled Reading the Constitution: Why I Chose Pragmatism, Not Textualism, laying out an argument critiquing the methods used by many Republican-appointed justices to interpret the Constitution.
“Recently, major cases have come before the court while several new justices have spent only two or three years at the court,” Breyer said in the book, according to the New York Times. “Major changes take time, and there are many years left for the newly appointed justices to decide whether they want to build the law using only textualism and originalism.”
The argument between “living Constitution” and textualist interpretations isn’t a new one. But Breyer laid out three major concerns with originalism, questioning the qualifications of Supreme Court justices to do some of the work required to determine what a text’s original authors intended.
“First, it requires judges to be historians — a role for which they may not be qualified — constantly searching historical sources for the ‘answer’ where there often isn’t one there,” Breyer wrote in the book. “Second, it leaves no room for judges to consider the practical consequences of the constitutional rules they propound. And third, it does not take into account the ways in which our values as a society evolve over time as we learn from the mistakes of our past.”
Breyer told the New York Times how he shared similar approaches to interpreting the Constitution as former Justices Sandra Day O’Connor, David Souter, and Anthony Kennedy, all of whom were appointed by Republican presidents, attempting to contrast recent appointments by GOP presidents.
“Sandra, David — I mean, the two of them, I would see eye to eye not necessarily in the result in every case, but just the way you approach it,” Breyer said. “And Tony, too, to a considerable degree.”
He also took issue with the court’s ruling in Dobbs v. Jackson Women’s Health Organization, one of the final cases he oversaw before retiring from the high court, arguing that there were too many questions at hand with abortion.
“There are too many questions,” Breyer said. “Are they really going to allow women to die on the table because they won’t allow an abortion which would save her life? I mean, really, no one would do that. And they wouldn’t do that. And there’ll be dozens of questions like that.”
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Breyer has previously spoken out against the Dobbs decision, saying he tried to persuade against overturning Roe v. Wade.
“Was I happy about it? Not for an instant. Did I do everything I could to persuade people? Of course, of course,” Breyer told CNN’s Chris Wallace in September.
