Justice Breyer’s Problematic “Pragmatism”

Nothing has improved Steven Breyer’s legal theory work so much as leaving the Supreme Court. His two books of scholarship as a justice were busts. Active Liberty claimed that the Court should shape its jurisprudence to advance democracy. But most of what was interesting about that proposition had already been stated more eloquently and persuasively by John Hart Ely in his brilliant book, Democracy and Distrust. And unlike Breyer, Ely acknowledged forthrightly that his principles required him to say that Roe v. Wade was egregiously wrong as a legal decision even if he favored abortion rights as a political matter. Breyer never analyzed Roe at all.

Next, in The Authority of the Court and the Perils of Politics, Breyer argued that the Court could maintain its authority only by avoiding acting in a political manner. But he never unpacked the meaning of the inherently vague term “political.” Worse still, he never considered why a jurisprudence that advances inherently vague terms (like “democracy” for instance) should not be seen as more political than one that sticks to the text.

Now, less than two years after resigning as a Justice, Breyer has written Reading the Constitution: Why I Chose Pragmatism, not Textualism. It has the virtue of providing a candid, clear, and comprehensive exposition of his approach to both statutory and constitutional interpretation. Moreover, some of his criticisms of too-wooden textualism are well taken. Nevertheless, while much better than his previous efforts, the book has two substantial failings. First, he often makes strawmen of the views of his opponents, particularly when discussing originalism. And he inadvertently shows how radical his rejection of textualism is. His views sometimes cannot even attract the more liberal justices on the Court, and they would often require rewriting rather than interpreting statutes.

Statutory Pragmatism Explained

Breyer argues that discerning the purpose of a statute is the key to interpretation, at least when the text is not perfectly clear. And he believes that in contested cases reaching the Supreme Court, the text is rarely clear. Because Breyer never clearly distinguishes positive reasons (what the law is) from normative reasons (what the law should be) for his position, his argument for relying on purpose is a mélange of both kinds of claims. As a positive matter, he claims that legislators think in terms of purpose because they are solving problems. Thus, the communicative content of statutes is naturally interpreted with purpose foremost in mind. As a normative matter, he thinks a purposive interpretation of statutes will help citizens keep Congress accountable, because citizens—like legislators—focus on purpose, not text.

But both his key claims share a flaw. Statutes of any complexity inevitably represent compromises. For instance, some legislators may want to solve a problem completely by regulating business. Others may worry about the costs to business. Therefore, they strike a compromise between their various objectives, and that compromise is reduced to a text. Being faithful to the text thus makes the judiciary a more faithful agent of the legislature. Moreover, it may distort democratic accountability to look at a statute in terms of its purpose rather than the text, because it is the text—not an unspecified purpose—that received the legislators’ votes.

Breyer does score a few points when he argues that there is nothing wrong with using legislative history to understand a statute. It is true, as critics of its use assert, that legislative history is not the text that Congress passes. But the canons of interpretation that textualists deploy to interpret a text are not enacted by Congress either. Both canons and legislative history precede a statutory text and can provide legal context for interpretation.

But most of the conservative justices on the Court do not wholly reject legislative history either. They just do not prioritize it as much as Breyer, using it to understand the text rather than to construct an extra-textual purpose to serve as the skeleton key of interpretation. Breyer, by contrast, candidly acknowledges that his search for purpose requires him to look not only at legislative history, but also at the consequences of his decision and the basic values that he discerns behind it.

If judges see their charge as creating a workable system of government for each generation, they crowd out the sovereignty of We the People to contribute over the generations to the Constitution’s design.

No wonder that Breyer ends up deciding so many cases with multipart balancing tests—there is no reason to believe that the many methods of discerning purpose will converge. Nor does Breyer ever address the rather obvious pragmatic problem that his supposed statutory pragmatism will create. How will anyone know what the law is, if its resolution depends on a mixture of incommensurable factors—consequences, values, and legislative reports? Amusingly, Breyer includes as examples of his approach a number of his statutory opinions where all eight other justices disagree. One does not have to be a rigid textualist to find his methods of statutory interpretation ultimately unpersuasive.

Originalism Assailed

Breyer’s constitutional jurisprudence is his statutory jurisprudence on steroids: Because he believes that much of the Constitution is written so abstractly that it provides no clear direction, workability (another word for consequences) and values have even greater sway. Given his view of the text’s vagueness and the open-endedness of values, his method would likely lead to even greater instability in constitutional than statutory contexts, as different justices in different eras would come to new conclusions about the Constitution as values and perceived consequences change.

Breyer’s implicit answer to this objection is that he believes in strong stare decisis. But this position does not provide much comfort. If cases are decided with narrow rules, they will not give much guidance, and the law will remain unclear. But if they create broad rules, why would we think that decisions in one era would necessarily have good consequences and reach decisions reflecting the Constitution’s values in another?

This section of the book also suffers from his long absence from academia. He makes many broad, but unsupported, claims about originalism that are vigorously contested by originalists today. First, he contends that originalism cannot work, because the Constitution contains “many general words.” But much of the thrust of modern originalist scholarship is to show that phrases, like “due process” and “cruel and unusual,” had a much less abstract meaning than might appear to a naïve, modern reader.

One of the reasons Breyer appears to believe that language is abstract is that he thinks that originalists are committed to original “public” meaning where public connotes exclusively the meaning available to the ordinary reader. But all originalists accept that some important terms in the Constitution are terms of art that must be interpreted against their often quite intricate legal background. And some originalists believe, like Michael Rappaport and I do, that the Constitution is pervasively written in the language of the law. Justice Antonin Scalia, Justice Breyer’s frequent sparring partner, thought that the document must be read against the background of the corpus juris. With that context, seemingly vague phrases—like judicial and executive power, for instance—have a greater determinacy than Breyer credits.

Second, Breyer argues that the Founders themselves were not originalists and prioritized considerations like the broad general purpose of setting up a workable government. His only evidence for this approach at the Founding is his reading of McCulloch v. Maryland, which states that the Constitution was “intended to endure” and “to be adapted to the various crises of human affairs.” For Breyer, these words show the inadequacy of a text-bound originalism to meet the changing circumstances of America.

But Breyer misinterprets McCulloch. As has been shown at greater length elsewhere, Marshall’s contention in McCulloch was not that the Constitution should be adapted to mean whatever those future decision-makers believed was necessary to meet changing circumstances. Instead, Marshall argued that the problem of anticipating future circumstances required that Congress be given broad authority so it could choose among the means. This interpretation of McCulloch has the advantage of comporting with the rest of Marshall’s jurisprudence. For example, Chief Justice Marshall’s discussion of both constitutional and statutory interpretation in Sturges v. Crowninshield reads like textual originalism. There, Marshall said that the meaning of the text should be rejected only if it reached absurd results. And that absurdity must “be so monstrous, that all the nation should reject it.” Even the absurdity rule Marshall applied in this opinion is just an example of a legal canon that was applied at the time to clarify the text.

Moreover, Breyer complains that justices should not be originalists because they lack the skills to be historians. But jurists undertake a much narrower task than historians—just determining what language meant at the time rather than launching a general inquiry into the motives and causes of events. In doing so, they are guided by the relevant legal interpretive rules—in which they, not historians, are experts. To be sure, they use bits of information about the past, but so do judges interpreting past statutes. And now that a large cadre of professors investigate original meaning, justices can deploy that work to aid their decision-making, just as they use the work of economists to help them decide antitrust cases.

Breyer is also wrong that modern originalists favor narrow rules as a matter of first principles. Justice Scalia may have done so, but that preference does not follow from originalism. Whether the Constitution speaks in terms of rules or standards is determined by its language, not by a priori preference.

Finally, Breyer says that originalism cannot provide for stare decisis, which is necessary for a stable legal system. But he appears to believe that originalists are committed to overruling any decision that is erroneous. Again, that is a mistaken assumption: many originalists, such as Professor Rappaport and I, believe we can protect reliance interests while moving back toward original meaning.

One extraordinary omission in Breyer’s discussion of interpreting the Constitution is any mention of the amendment process. In reading his book, one would come away with the view that the only way to address social change is through interpretation. But the Framers were aware of social change, and the Constitution includes many ways of addressing it. The states, which have few constitutional limitations, can experiment—and if their experiments catch on, they may effectively change the law across the nation. Congress has broad but not unlimited powers to innovate as well. And finally, the people themselves can amend their own fundamental law. If judges see their charge as creating a workable system of government for each generation, they crowd out the sovereignty of We the People to contribute over the generations to the Constitution’s design. For a professed democracy enthusiast, like Breyer, that’s not very democratic.

Breyer ends his book by wondering whether a “paradigm shift” to textualism and originalism will take hold. He correctly argues that this jurisprudence will succeed only if it becomes accepted by legal culture. He is also right that successful criticism of its flaws will prevent that from happening. But Breyer’s book is not persuasive or trenchant enough to block the further rise of textualism and originalism.