My Law & Liberty colleague John McGinnis observed regarding Stephen Breyer’s 2024 book, Reading the Constitution: Why I Chose Pragmatism, Not Textualism, that one need not “be a rigid textualist” to conclude Breyer’s theory of statutory and constitutional interpretation “ultimately unpersuasive.” McGinnis’s point is entirely correct. But the deeper irony of Stephen Breyer’s “pragmatic” approach to legal interpretation is that one could fully accept his purpose-oriented approach to constitutional and statutory interpretation and yet be deeply troubled by the tension—if not outright contradiction—between the values he says he cherishes and his view that Supreme Court jurisprudence appropriately changes with the times.

Specifically, Breyer claims repeatedly in the book that his approach to legal interpretation “puts into practice the Constitution’s democratic, humane values.” Yet the substantive positions Breyer takes in the judicial opinions he defends manifestly reject those values over and over. Again, the irony could hardly be more pointed: Even if one fully agreed with Breyer’s values and interpretive approach, that very agreement would lead one to reject many of the judicial opinions Breyer seeks to justify in his book.

Breyer’s purpose-based interpretive theory seeks above all to be “pragmatic” and “workable.” In his theory, while “the language of the Constitution will sometimes help” a judge to arrive at a decision, text is only one ingredient in his interpretive goulash. In Breyer’s approach, there is no rank order among “text, precedent, tradition, purposes, values, and consequences.” Breyer argues that “purpose-based approaches advance constitutional and congressional purposes, not the judge’s own agenda.” Yet Breyer’s argument crescendos by the end to advance the claim that the justices’ constitutional “paradigms” change to channel the zeitgeists of different eras.

It is hardly a stretch to conclude that Breyer’s nod toward enduring constitutional and democratic principles is perfunctory. Rather, he advances an interpretive theory specifically calibrated to channel the changing zeitgeists of different eras into constitutional jurisprudence rather than to articulate and protect enduring democratic and constitutional values.

Breyer’s Anti-Democratic Judicial Paternalism

Consider, first, the sweepingly paternalistic claim Breyer posits in favor of his interpretive approach, that in applying it the Supreme Court can save the American public the time and trouble it might otherwise waste on amending the Constitution. Quoting historian Michael Klarman with approval Breyer writes, “Historians have praised the document’s workability, noting that without its ‘open texture … Americans would have needed either to formally amend the Constitution much more frequently than they have done, or else to scrap it as merely of antiquarian interest’” (ellipses are Breyer’s).

One need not be committed to any form of interpretive textualism to wonder at Breyer’s glib endorsement of substituting a five-justice majority on the Supreme Court for the Constitution’s democratically-rich amendment process.

To be sure, one can reasonably believe that the US Constitution sets sub-optimally high thresholds for the amendment process. But the question isn’t whether the Constitution’s amendment procedure is too difficult, it’s the promiscuous alternative Breyer endorses as its institutional substitute. Ironically, just a couple of paragraphs before endorsing the Court as a substitute for the amendment process Breyer boasts that his interpretive approach “reflect[s] the basic need to interpret the Constitution so that it works well, maintaining the basic democratic, human, and legal values that underlie it.”

One could agree with the constitutional values Breyer identifies yet also worry that substituting a five-justice majority on the Court for the Constitution’s amendment process not only does not “maintain” those very same constitutional values, it pointedly undermines them.

While Breyer commends the judicial short-circuiting of the Constitution’s amendment process, removing the amendment process from the give-and-take of the ordinary democratic process manifestly diminishes the republican character of American politics. After all, the very process of argument and change, while not without cost and divisiveness, nonetheless fosters public responsibility and republican character. It is breathtaking that a justice—or former justice—would endorse the view that it is actually good for the Court to save the public from that responsibility.

Breyer’s judicial paternalism similarly aims to save Congress from its constitutional responsibilities as well. Despite his claims that his interpretive theory facilitates the democratic nature of the ordinary legislative process, he paternalistically argues that his interpretive approach saves Congress from the trouble of expending the effort to draft the legislation that it actually wants.

Breyer argues that Congress can’t be expected to write the legislation that it actually desires. Rather, because legislators are not as adept at legislative drafting as judges are, legislators will “inevitably write words that overshoot or undershoot their mark.” Like so many helicopter parents today, judges in Breyer’s purpose-oriented approach to interpretation would “help” legislators achieve the purposes they want to achieve but are ostensibly incapable of achieving without judicial assistance.

This is another way in which his so-called “pragmatism” undermines the democratic touchstone of American politics. And, again, one need not be any sort of a textualist to wonder about the role Breyer sees for judges (and that he presumably saw for himself as a judge and justice). While Breyer rejects textualism because judges can’t be expected to do the sort of historical background work that it requires, Breyer’s approach instead requires that judges be psychologists and sociologists, plumbing the depths of legislators’ subjectively-held purposes better than the legislators can do themselves.

Breyer’s “Workable” Constitution Means National Power Always Expands

The tension between Breyer’s actual Court opinions and his claim that his interpretive theory implements enduring constitutional values and principles is also apparent in the separation-of-power decisions he discusses. Breyer criticizes attempts by the current Court to articulate limits on delegation of legislative power to executive branch agencies and to make those agencies more accountable to their democratically-chosen head, the president. Although he insists that his legal theory is more democratic than textualism, his bias towards unelected agencies reveals a thorough-going and undemocratic elitism.

Breyer doubles down in his book on the opinions he wrote while a justice defending broad delegations of legislative power to executive branch agencies, and defending the grant of broad judicial authority to executive branch agencies, and defending the broad immunization of those same executive branch agencies from democratic accountability through continuing presidential oversight. Yet again, one need hardly be a dyed-in-the-wool textualist to worry at least a little about the modern erosion of the separation-of-power principle among the branches of the national government or between the national government and the states. (Breyer does not mention, nor—surprisingly—even cite, his support for an expansive, even limitless, interstate commerce authority of Congress in his dissents in the Lopez, Morrison, and Sebelius cases.)

Surely those committed to democratic and constitutional values could worry, at least in the abstract, about the consequences of ever-increasing concentrations of legislative, judicial, and executive power in the hands of executive branch agencies, especially when combined with their broad immunization from ongoing democratic accountability.

Breyer’s Supreme Court Channels the Zeitgeist

Breyer claims to believe that judges ought to apply enduring constitutional principles to form and guide American law. Yet he concludes his book with a broad historical discussion that treats constitutional jurisprudence as an empty vessel through which the Court channels the zeitgeist of different eras.

In Breyer’s theory of interpretation, “the Constitution” is little more than a goulash of different legal ingredients that reflect the political taste of differing justices. Breyer’s culminating discussion of changing judicial “paradigms” reflects an interpretive theory calibrated to permit judges to privilege their view of the spirit of the times rather than discipline themselves to implement even broad constitutional and democratic values and principles.

Breyer discusses changes in judicial methodology during three important eras: the Lochner era (roughly 1897–1937), the New Deal era (1937 through, perhaps, the 1995 Lopez case), and the era of the Warren Court (1953 through 1969 or a bit longer). These eras demonstrate, according to Breyer, “that the Court’s paradigm shifts” with the times.

For example, the Lochner era, Breyer writes, reflected the “laissez-faire zeitgeist … of prominent thought leaders of the era.” But by the late 1930s, because of the Great Depression, the Court’s Lochner-inflected jurisprudence necessarily changed “in significant part because times had changed.” So, too, while the Warren Court arguably retrenched its early attempt to expand constitutional rights in the late 1950s (which Breyer does not note), by the 1960s the Court felt it had sufficient institutional support to expand criminal rights and First Amendment and privacy rights in the face of widespread public opposition.

While Breyer of course makes a pro forma nod distancing himself from the claim that the Court responds directly to political circumstances or public opinion, he nonetheless argues that “the Court needs public support” and that in each of these three eras, “the Court received sufficient public support that it was able to bring about a basic paradigm shift.”

We can, first, wonder just how much public support these three jurisprudential “paradigm shifts” truly enjoyed. The Warren Court in particular, but perhaps also the Lochner Court, arguably ratified elite political opinion against popular opinion. And the New Deal Court is not necessarily the exception that proves the rule, it just happened to be an era in which elite opinion coincidentally aligned with popular opinion.

What is ultimately absent in Breyer’s account of these eras is any sense in which the Court recognizes a responsibility to facilitate the shaping and maintenance of an American character according to the Constitution itself. Note that, again, one could easily agree with Breyer’s earlier claim that the Court should channel constitutional and democratic values, and that very agreement would lead one to reject the judicial plasticity of Breyer’s “paradigm shifts” in the culminating argument of his book.

One need hardly be a rabid textualist to wonder whether a constitutional jurisprudence worthy of the name might challenge and redirect the zeitgeists of different eras into different paths rather than ratify them as law no matter how contrary to our country’s constitutional values and principles. Breyer says he also cherishes those values and principles, but a careful reader of this book might come to doubt that commitment.