Former Supreme Court Justice Stephen Breyer is out with a new book [emphasis in the title], Reading the Constitution: Why I Chose Pragmatism, Not Textualism. In an interview with The New York Times, he had this to say about originalism, textualism, and relatively newly appointed Justices.
Recently, major cases have come before the court while several new justices have spent only two or three years at the court. 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.
Yeah, these Justices couldn’t possibly have developed their view over the years they’d spent on lower court benches, or practicing law, or clerking for other judges and Justices.
Then there’s his inherent position that judges and Justices build the law in the first place. Of course, they cannot, legitimately; they can only interpret and apply the law and our Constitution as they are written. Building the law is, under our Constitution, solely the province of our elected legislators in conjunction with the advice of our elected President (advice, because his veto can be overridden by those same legislators).
There’s this, too, from Breyer:
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[.]
That’s an astonishing thing for a judge of any sort to say. Stare decisis—precedent—has history at its core as judges and Justices search out those precedents, their reasons for existing, and whether those reasons still apply or were applied correctly in the first place. Of course judges must be historians, at least regarding law and the politics that underlie a law’s creation.
Second, it leaves no room for judges to consider the practical consequences of the constitutional rules they propound.
Whose definition of “practical consequences?” This, too, is a matter solely for the political branches, the Legislature and the Executive, along with We the People who elect them, to define. Such definitions are essential aspects of law building from which the structure of our government and the oaths of office our judges and Justices take explicitly bar those judges and Justices.
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.
This, too, is far outside the authority of judges and Justices. They don’t get to define the ways in which our values as a society evolve nor do they get to alter our laws or our Constitution to align with their personal views of those values or their personal views of those values’ supposed evolution. Their authority is strictly limited, again, to applying the law and our Constitution as they are written.
So it is with our Constitution in particular, and that document evolves with society in a particular way: through Article V and its instruction on how to amend our Constitution.
All adjusting according to society’s evolution is the sole province of our elected legislatures and us citizens who elect them. The latter—us citizens—after all are the entirety of our society and the definers, in our aggregate, of what our society’s values are. Judges and Justices, as private citizens, certainly are part of our citizen population, but when they’re operating in their capacity as judges and Justices, they are not private citizens, but public employees who are bound to act within the law and our Constitution.
That, in turn, requires them—all together now—to apply the law and our Constitution as they are written. Justices who presume, in particular, to modify our Constitution from the bench, under the rationale, perhaps, that society’s values have changed from when those clauses and amendments were ratified, are explicitly violating their oath of office to support and defend our Constitution, not to alter it.