book review--Reading the Constitution: Why I Chose Pragmatism Not Textualism, by Stephen Breyer

Stephen Breyer, served as a Justice on the Supreme Court for 28 years (1994-2022).  He has written nine books about the law; this is his tenth.  The book examines closely the difference between two approaches Supreme Court justices use to interpret the U.S. Constitution.  The first is what he calls "Pragmatism" (which he endorses ) and the second is called "Textualism".

Breyer spends much of his book discussing the pluses and minuses of both, and how they have determined the outcome of number of significant Supreme Court decisions, particularly "Dobbs v. Jackson Women's Health Organization".  The book also examines what Breyer describes as "paradigm shifts" on the Supreme Court down through the years.

"Pragmatism" is to view the Constitution as a "living document" adaptable to meeting whatever crisis might lay ahead, for generations to come.  A pragmatic judge decides not to achieve what he or she believes is 'good', but in a special sense "the judge works within a framework of rules, approaches, standards, presumptions, legal institutions, and a host of other doctrines that inevitably will shape which is the 'better' view of the case. . . ."  In this sense, the judge will consider the law being challenged in Court, why it was written, and for what purpose.  The judge will then examine the Constitution to determine if the law conflicts with it in some way.  At the same time the judge will consider the benefits the law will have on society.

"Textualism" is to view the U.S. Constitution as a static document, to take literally the words written in the Constitution.  In some cases, a judge may turn to a dictionary to gain clarity of some word that the framers used.  Or he may examine the legal and philosophical writings of the framers, and on that basis determine how he might have ruled in the case now before the Court. The textualist believes that, comparatively speaking, textualism will suggest there is a right answer to interpretative problems, an answer to which the original document points.  The existence of a single right answer, to which the text and linguistic methods leads, is meant to cause fewer disagreements among judges, and for U. S. citizens to have greater faith in decisions rendered by the Supreme Court.

Among the framers of the Constitution, Alexander Hamilton wrote a legal brief  for President George Washington to consider; in doing so, Hamilton created what has since been known as, "The Implied Powers Doctrine", which said that the Constitution was not meant to be a static document, but rather a broad and adaptable body of laws meant to be applied to whatever legal issue might arise in the future.  James Madison and Thomas Jefferson, in a second legal brief, for President Washington to consider, drew attention to the "Necessary and Proper" clause of the Constitution.  This clause has also been called "the Enumerated Powers Doctrine".  This Doctrine would have Supreme Court Justices adopting a narrow interpretation (dare we say "a textualist" view?) of the Constitution.  According to most historians, had Jefferson and Madison had their way, the federal government's actions "would have sunk quickly to the level of complete and utter incompetence."

Fortunately, President George Washington sided with Hamilton's "Implied Powers Doctrine", as did James Madison and Thomas Jefferson, when they served as presidents.  Indeed, without the "Implied Powers Doctrine", President Thomas Jefferson could not have made the deal that resulted in the Louisiana Purchase, a deal that doubled the size of the United States. Why? because the federal government could not have made the purchase because the buying of territory was not expressly stated in the Constitution. (Even Jefferson's biographer, Dumas Malone, and Madison's biographer, Irving Brant, admitted that Hamilton was right, and their man was wrong).

Which brings us to the infamous "Dobbs' Decision".  In this case, the Court, relying on textualism, overturned long-standing Supreme Court precedent that had recognized that the Fourteenth Amendment protected a woman's right to have an abortion.

In the "Dobbs' Decision", the majority's reasoning boiled down to one basic proposition: Because the people who ratified the original Constitution and the Fourteenth Amendment did not understand the document to protect reproductive rights, the document could not be read, now, as protecting those rights.

In a dissenting opinion, Justices Sotomeyer, Kagan, and Breyer, writing together, pointed out that "'people' did not ratify the original Constitution in 1788 or the Fourteen Amendment in 1868.  White men did.  Women were not understood as full members of the political community at either of these points in history.  Indeed, they would not gain the right to vote until 1920 (with passage of the 19th Amendment).  The recognition of women's rights--from the right to vote, to the right to have an abortion--flowed from there, and contributed to women's ever-growing role in society, particularly in the nation's workplace. In the face of this progress, (textualism) would limit the kinds of liberty cognizable under the Fourteenth Amendment to those contemplated by men who existed at a time when women were not considered to have a legal identity separate from their husbands. And so, by saying that 'we must read our foundational charter as viewed at the time of ratification,' the majority have consigned women to second-class citizenship".

To endorse the "Dobb's Decision", is to ignore the contributions today's women are making in business, government, economics, sports, education, arts, and the sciences, and in the law (at the time of this decision, three Supreme Court judges were women), and in the military (women have been serving in combat, and as cadets attending classes at VMI.)

In view of women's protest since the "Dobb's Decision", it would appear the Supreme Court's minority opinion was squarely on the mark.  Since the Court's decision, women's activism across the nation has led to the passage of a number of state laws that legalize women's right to choose, with more state laws on the way.

Irony of ironies, "The Dobb's Decision" would place women in a straight jacket, binding them to an uncompromising central government's authority, much as one would expect from a socialist country; this from five conservative justices out to put the brakes on socialists trends in our federal government

THE MARSHALL COURT (1801-1835)

Even more curious is that these very anti-abortion justices were trained in the law by the most prestigious and respected law schools in our country. Surely, they read the cases written by the Court's greatest Chief Justice, John Marshall (1755-1835). Through his many decisions, Marshall (a Hamiltonian Federalist), created the Doctrine of Judicial Review, in the Court's landmark decision, Marbury v. Madison (1803), thereby granting the nation's Supreme Court powers equal with that of the Executive and Legislative branches of the Federal government. Without that ground-breaking Decision, there would be no judicial review, hence no jourisdiction for the Supreme Court to render "The Dobb's Decision". At the same time, through several Supreme Court decisions, The Marshall Court elevated the scope and power of the federal government as supreme overall, while diminishing state power to a secondary and inferior status.  When the Marshall Court wrote a decision that President Andrew Jackson found objectionable, our 7th president responded cynically, "Where's John Marshall's army to enforce his decision?  Who's going to enforce it?  Certainly not me."  In fact, The Chief Justice didn't need the executive branch to enforce the Court's decision, because the people were solidly behind the court opinions of the Marshall Court.

John Marshall had his finger on the pulse of the nation, and knew better than most not to write an opinion that the nation would not support. Indeed, all the great Supreme Court Justices seldom wrote opinions that did not reflect the nation's thinking.  Even Earl Warren knew this when his court issued "Brown v. Board of Education".  History shows that while the nation did not at first support this decision, in time it would.

THE TANEY COURT (1835-1864)

When John Marshall stepped down after thirty-four years on the bench, Andrew Jackson filled his shoes with the most conservative jurist he could find--a former southern slave holder named Roger Taney (pronounced "Tawney"). While well-schooled in the legal arts, Taney would write the worst and cruelest Supreme Court decision in our nation's history: "Dred Scott v. Sandford " (1837), a decision  that upheld slavery as constitutional, and caused such controversy, that it sparked the major cataclysm in our nation's history--The Civil War.

The Taney Court ushered in a period of conservative decisions that trampled on the rights of workers, while bolstering the power of America's burgeoning business class.  The case that best expressed these conservative judges, was "Lochner v. New York"  (1905), which was decided under Chief Justice Melville Weston Fuller (1888-1910).  This notorious decision ushered in a Supreme Court's era of conservative decisions since known as "The Lochner Era".  The Lochner Era's decisions were so notoriously out-of-step with the needs of the nation, the period has since been named NOT after the Chief Justice, but after it's most notorious decision.

THE LOCHNER COURT (1905-1937)

The Lochner Court endorsed the Jim Crow South's racial discrimination policy, with issuing the Plessy v. Ferguson decision.  The Lochner Court also is noted for decisions that endorsed "laissez-faire disdain for federal regulatory power"; ruled against the right of workers to form labor unions, ruled against free speech, ruled against pay raises for women workers, and upheld the right of Big Business to employ child labor.

In the Depression Era, after President Franklin Roosevelt unsuccessfully tried to pack the court with younger justices, in order to get his New Deal progressive agenda enacted, Chief Justice Charles Evans Hughes got the message, and led the High Court to expand its concept of the Constitution, and allow active federal intervention in commerce (the Court's timely decision has since been called, "the decision in time that saved nine".  Under Chief Justice Hughes' direction, Roosevelt's minimum wage law was upheld, as were the constitutionality of the National Labor Relations Act, and the right of employees to organize unions, and struck down the right to employ child labor. Such progressive decisions, ended The Lochner Era, and helped pull the nation together, and restore its ailing economy.

Another irony is that nearly all of the Supreme Court's dissenting opinions issued during "The Lochner Era", would in the future become the Court's majority opinions, beginning with Chief Justice Earl Warren's appointment to the High Court, in 1953.

THE WARREN COURT (1953-1969)

Having been keenly aware of the strident racism of Nazi Germany, during World War II, Chief Justice Earl Warren latched onto the first case involving racial discrimination to come before the Court.  This was "Brown v. Board of Education".  Sensing the mood of returning GIs, Warren decided it was the ideal time for the High Court to endorse civil rights, and urged all of his fellow justices to vote in favor of the Court's decision.  In doing so, Warren assured an unassailable 9-0 decision, that would mark a sea change in civil rights enforcement.

Thus began an onslaught of landmark decisions, including "Carr v. Baker", which held that legislative redistricting fell under judicial authority; "Miranda v. Arizona", which clarified and expanded the rights of the accused, and Loving v. Virginia, which made interracial marriage legal.  Among other noted decisions was Griswold v. Connecticut, which held that the State of Connecticut could not ban the possession of birth control by married couples. The Warren Court also became the first of the Three Branches of government to take a stand on protecting the environment.  Perhaps most notable, was The Warren Court's liberal interpretation of the First Amendment, arguing "without deviation, without exception, without any ifs, buts, or whereases," that freedom of speech be protected from all government interference.  In hindsight, the Warren Court did more for the rights of Americans than any previous Supreme Court in our nation's history.

When Chief Justice Earl Warren stepped down in 1973, President Richard Nixon replaced him with Warren Burgher.  "The Burgher Court" is known almost exclusively for one controversial decision: "Roe v. Wade".  Even a noted liberal Ruth Bader Ginsburg (who would be appointed to the High Court, by Jimmie Carter), criticized the decision, implying the nation wasn't ready for it, saying the Court had "moved too far too fast."

Which brings us back to "The Dobbs' Decision".  Despite what its proponents say about "Textualism"-- that's it's designed to cause fewer disagreements among judges, and for U. S. citizens to have greater faith in decisions rendered by the Supreme Court, this ruling has clearly failed in both endeavors.  The Court remains deeply divided, and the latest poll among Americans reveals that 96 percent of the population favors a woman's right to choose. At the same time, the court's popularity is at it an all-time low.

Other controversial decisions include "District of Columbia v. Heller" (1908), invoking what the court claimed was the "original" meaning of a citizen's "right to bear arms", which is to say, without the slightest restriction to purchase any type of firearm citizens may want, even miltary-grade rifles, such as AK47s.  Ironically, most legal scholars argue that the Second Amendment was originally intended to protect each state's militia from a potentially tyrannical federal government.  Another questionable decision is  "Citizen United v. Federal Election Commission" (2010), which effectively undermined our democracy.  And lest we forget, "Shelby v. Holder" (2013). It's not just that a bare majority of the court gutted one of the most important civil rights laws in American history; it's that the principle they relied on, was one relied on by apologists for the Confederacy after the Civil War: that states "possess a special dignity that is offended if we should recognize that some have engaged in more race discrimination than others."

The lessons of John Marshall and Earl Warren, is that the High Court cannot issue decisions in a vacuum, that it must be aware of the nation's mood.  As the nation changes, so must the Supreme Court's decisions change. To do otherwise, is to jeopardize public support.

Who's to say The Robert's Court, as with The Lochner Court, will be forever known for its most controversial decision; not as "The Robert's Court", but as "The Dobb's Court"?  While Justice Stephen Breyer is too much of scholarly gentleman to make so bold a forecast, judging by the evidence presented in his book, the answer seems obvious.

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