Justice Stephen Breyer may no longer sit on the Supreme Court, but he still has thoughts about his old workplace. Tomorrow, Open to Debate is dropping a wide-ranging interview with Breyer covering everything from his personal account of the day he was nominated to the Supreme Court to the mechanics of the conversations justices have.
He also gives his secret strategy for making sure he’d get assigned an opinion with just three little words.
How Filevine Bakes AI Into Every Layer Of Your Case Management
It’s like having a junior associate who’s never off the clock.
However, a good deal of the conversation explores themes from his latest book Reading the Constitution: Why I Chose Pragmatism Not Textualism. Breyer’s book and the related discussion provide a frustrating take on judicial philosophy. Not because the justice fails to lay out intellectual case against either textualism or originalism, but because he addresses them with the respect they have done nothing to deserve.
There’s nobility in raising the level of discourse through professional and respectful engagement. But it’s also the kind of nobility that gets offed in the first season of Game of Thrones.
It’s a matter of victory conditions. Textualists don’t care about convincing everybody, they just need their trash ideas treated “fairly” by respected people so they can pawn off their worldview as reasonable disagreement. Defenestration via Overton Window.
Efforts to unilaterally elevate the conversation miss the mark because they fail to grasp this victory condition issue. The conservative legal movement doesn’t care that you can respectfully poke holes in their chosen interpretive philosophy — they more or less know it sucks — they just want it treated with unearned dignity on the public stage so they can trade on the patina of credibility that affords.
The Law Firm’s Guide To Trust Accounting And Three-Way Reconciliation
Proper trust accounting and three-way reconciliation are essential for protecting client funds and avoiding serious compliance risks. In this guide, we break down these critical processes and show how legal-specific software can help your firm stay accurate, efficient, and audit-ready.
The Open to Debate crew notes that they recorded a prior debate titled “Should SCOTUS, the Supreme Court, focus on the original meaning of the Constitution?” and I know that because I was on that one! I recall Professor Randy Barnett laid out “five normative arguments” for originalism and I was allowed to ask a question at the end prompting him to concede his “number one” argument. If only I’d been able to ask more questions, we could’ve knocked them all out! But the point is even the defender of originalism was willing, when pressed, to admit he wasn’t even persuaded by the top argument he presented. It’s just throwing pasta on the wall and hoping the other side is polite about it.
This doesn’t mean forfeiting critique or descending into Twitter-thread invective. Refusing to engage is its own vice. But tone matters. If the argument registers as polite disagreement rather than scathing teardown, textualists can declare mission accomplished.
If there’s a quote from the discussion that captures this disconnect, it’s this one:
So if you, you say to the textualists, what, uh, “Do you agree with Brown versus Board of Education?” They say, “Yes, of course.”
Ahem.
This isn’t hyperbole. During the first Trump administration, Democrats took to asking his judicial nominees if they would at the very least agree that Brown v. Board was correct and they… struggled mightily. They weren’t being asked if Brown required a return of bussing or anything, just if — on its own facts — they agreed with the unanimous Supreme Court opinion against Jim Crow education. Koosh balls aren’t even that soft. And yet it caused much hemming and hawing among Trump’s nominees. Indeed, the counsel shepherding GOP nominees through the Judiciary Committee at the time threw a tantrum that it was unfair “gutter politics” to make nominees defend desegregation while under oath.
So when Justice Breyer grants the champions of textualism and originalism the benefit of the doubt that they would “of course” say they support Brown, he doesn’t grasp the conservative legal movement’s YOLO era where they’ve stopped pretending and just raw dog judicial review. There are certainly still originalist wizards willing to offer lip service to Brown ending de jure segregation while playing semantic games to guarantee de facto segregation, but for a lot of them the hood is now off. Or on as the case may be.
Either way, it renders this academic sparring session with textualism a naive exercise. He’s saying they would say “of course” as if these folks have some good faith belief in Brown, when recent events make pretty clear the movement only ever said “of course” to further the con that their philosophy had any depth to it.
The whole approach feels like chiding Orval Faubus that his articulation of states’ rights misreads the Federalist Papers. As the ubiquitous goose meme would ask, “A STATE’S RIGHT TO DO WHAT?!?” The point forcefully expressed by our feathered friend is that the philosophy is inextricable from its purpose. That’s the nut that an academic conversation about this stuff can’t get at: originalism’s whole appeal is that constitutional law was better in the 1700s. “For who?” the goose might ask. Which is wrong because it should be “for whom” but geese are terrible at grammar. But when someone decides they’re an originalist, you can’t haggle with them over finer points of workability — valid though those points may be — because they’re in it for the value it represents. They’re in it because they actually believe in a backward-looking world. Tear down originalism from the ivory towers and they’ll just invent a new mechanism to get there.
Which is all to say the conversation is interesting but incomplete. Until someone in Breyer’s position delivers their sharp argument without conceding the textualist/originalist covert demand for respectability, these discussions do little to derail the steady advance of a jurisprudence of witch-hunters.
The episode is out tomorrow and covers this and much more. Check it out here:
7/4: Thinking Twice: Reading the Constitution with Justice Stephen G. Breyer [Open to Debate]
Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter or Bluesky if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.