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Retired Justice Breyer warns of the perils of conservatives' judicial philosophy

SCOTT DETROW, HOST:

Right now, the U.S. Supreme Court is playing an enormous role in the various court cases former President Donald Trump is facing. Earlier this year, the court blocked states like Colorado from booting Trump off the ballot. And next month, the court will hear arguments over whether or not Trump or any other president has immunity from the laws of the land while in office. To understand the current court a bit better, we spoke at length with someone who used to sit on it, retired Justice Stephen Breyer.

Over the course of his nearly 30 years on the Supreme Court, Breyer was a part of the most consequential decisions to come out of it. Think Bush v. Gore, same-sex marriage, the Affordable Care Act. He also witnessed firsthand how the court's ideological makeup changed. Now retired, Breyer has written a new book ringing the alarm bell over a popular conservative school of thought, textualism. Textualism is the belief that the right way to interpret the Constitution and its statutes is to read the text as it was understood at the time it was written. The conservative majority on the court right now relied on that philosophy in their ruling in Dobbs v. Jackson, when they ruled the Constitution does not guarantee the right to abortion. Breyer instead advocates for pragmatism, the legal theory that takes current social and political context into consideration when coming up with a legal opinion.

When I spoke to Breyer earlier this week, I started by asking him how the court separates public opinion and the political mood from its decision-making.

STEPHEN BREYER: Why did I write this book? I wrote it because lots of people think who don't like, say, Dobbs or other decisions - and there are other people who do like them - but a lot of people think that when decisions come along they don't like it's political. And - or maybe it's just people doing what they want, what they think is good. But in any case, in 40 years as a judge, 28 on the Supreme Court, that has not been my experience. You can't say zero. You can't say zero about anything. But that, to me, is not the best way to look at it because it is not the best way to deal with the problems of interpretation and the problems of law that I've seen on the court.

What the political groups do is try to convince political people in Congress or the president, appoint Mr. Smith. What they think is that Mr. Smith has a judicial philosophy, an outlook on how to decide cases which will lead to results that they politically like. Now, they may be right. They may be wrong. But the judge is thinking he's doing what the law demands. And that matters because I think now the law, the interpretation system, the way you approach cases has been moving in the wrong direction.

DETROW: Justice Breyer, I have a question about pragmatism. And I think there is an enormous test of pragmatism in front of the court right now, and that is the case that the court is considering about a month from now tied to former President Donald Trump and whether or not presidents have immunity. And the court's decision to take this case has raised major questions about whether Trump will go to trial before the election. So this is the pragmatic question that millions of Americans are thinking about right now. Should timing factor into the court's thinking?

BREYER: Timing, should it factor? It depends on the case whether it would or not, but normally it doesn't. Normally, when you have a case - and I'm not saying about that case because that's a future case that I'm not talking about. But normally, when you have a case, much more than people think, much more than people think, what happens inside the court? Nothing that they don't find out about in the opinions.

DETROW: This is a remarkable situation that tests core constitutional questions about federal elections, about multiple branches of government. And this key question of, should there be a criminal trial when a presidential nominee has been charged with crimes? I mean, this just seems like a remarkable question that puts all of these things you're talking about right in front of the court right at this moment. And I'm wondering how you think about it.

BREYER: Oh, well, I don't know. I don't think about it now in depth because I have retired.

DETROW: I'm going to press this one more time because you know that that's my job. You have declined to weigh in on this immunity question or other matters in front of the court in several interviews that you've done for this book. And I do have to ask. I haven't really heard you fully explain why you're choosing not to because, as you said, you're a retired justice now. You're not presiding over any of these cases. You're not going to be writing an opinion on these cases. Why not tell us how you, one of America's top experts on this particular issue, how you're thinking about this?

BREYER: Well, I think it's not very ethical. I've resigned from the court. I do not have a vote. And I don't think I, at least, a person who has resigned, should be trying to influence or second-guess the people who are on the court.

DETROW: I'm wondering on the really big questions how frequently you were able - and I'm not asking for specifics - how frequently you were able to change the mind of fellow justices when it came to this. Because I think there are a lot of Americans who think the only thing that changes the direction of the court is whether a Democrat or Republican president appoints the next justice.

BREYER: No, it isn't so. I mean, there are lots of - why do we have our conferences? I mean, they're - what you say is not unreasonable. There are some judges who thought just like you. But I have never thought that way. Well, most of them, no. Why? Why do I think it's so important that people understand what's going on here with what you might call the basic approach?

DETROW: Yeah.

BREYER: The basic theory. Why? Well, this I can't prove. And it's abstract. But I can't prove it. I had in my office a woman from Ghana who was the chief justice and trying to make their constitution or make their law more protective of human rights. And she asked me, why do people do what you say? You said - you bring up Bush v. Gore. And I have to say there is no single answer. It takes a long time. Maybe it took us a hundred years. Maybe it took us 200 years. It took a long time. But I heard Senator Reid say about Bush v. Gore - and he was a Democrat. He said - I'm sure he didn't agree with Bush v. Gore. I didn't agree with Bush v. Gore. I dissented. And when I'm talking to students at Stanford, I say what he said. The most remarkable thing about that case is very rarely remarked.

Despite the fact that it affected a lot of people, despite the fact that the country was against - well, at least half the country was against it, maybe a few more. I don't know. Despite the fact that it was wrong, in my opinion, and in his, despite that people did follow it, and Al Gore said - he said, don't trash the court. That took 200 years. All right. And I say, I know. I'm at Stanford. And I look at your faces. And I can tell you that at least 30% of you are thinking, too bad a few stones weren't thrown. Too bad there weren't a few riots. But before you decide that definitely, I hope you'll turn on the television set and see what happens in countries that decide their major problems that way.

DETROW: Justice Breyer, I have to follow up, that 20 years later, exactly what you're describing did happen across the street from the Supreme Court. Across the board, the courts on the state and federal level said that Joe Biden won the election. And yet an angry, violent mob attacked the U.S. Capitol. When you talk about the institutions of government, how do you account for that?

BREYER: I don't want to discuss things that maybe - I've explained why.

DETROW: Sure.

BREYER: And what I'm telling the Stanford students and what I think is debatable - you might debate this - but what I think is relevant is the rule of law requires not judges and lawyers explaining why it's so good, which is what we're doing now. But the average person - you know, contrary to popular belief, we have 320 million people in this country, and 319 million are not lawyers. And they're the ones that have to accept the rule of law. All right. And you go talk to the people in the villages, in the towns, in the cities and explain to them why it's desirable, usually, to accept the result in a case, even if you think it's wrong. Now, suppose you don't. Well, the thing that's literature there that really made an impression on me. Have you ever read Camus' book "The Plague"?

DETROW: I had an occasion to reread it a few years ago.

BREYER: Good.

DETROW: It was timely.

BREYER: You will see it's about a plague. But it is also timely because it's about the Nazis in Germany, in my opinion, and how people behave - some good, some well. And at the end, he has this question. He asked the question, why did I write the book? And his main answer is this. He wanted to tell us how people behave. But he also wanted to tell us. And he says the plague germ, as you know, never dies - never. It simply goes into remission. It lurks, those Nazi plagues. It lurks in the attics and the hallways and the file cabinets, one day to re-emerge to the detriment or education of mankind and sets its rats again to invade a once-happy city. Well, that happens because we all have that plague germ somewhere in us, and we have weapons to fight against it. And the rule of law is one of those weapons. And so I don't like to see it weakened.

And I fear that a system of interpretation which just looks at words and doesn't look at values and doesn't look at principles and doesn't look at consequences, I'm afraid that such a system will weaken the extent to which law itself can help people in the United States as well as elsewhere. Three hundred and twenty million live together, every view under the sun, every race, every religion. Those people live together peacefully, by and large, and productively. And that's what we want.

And those values in the Constitution, those values are, you know, democracy, civil human rights, basic human rights, a degree of equality, separation of powers. And no one gets too powerful. All of those things, they're there. And we want to preserve them. And weakening people's confidence in the system of law's ability to bring about a more harmonious society, a more productive society, a society that lives more closely to those values that those framers put in that document? No. That weakens the weapon that we have, one of the weapons that we have against that plague germ that Camus writes about.

DETROW: Justice Stephen Breyer, who served on the United States Supreme Court from 1994 to 2022. His new book is called "Reading The Constitution: Why I Chose Pragmatism, Not Textualism." Justice Breyer, thank you so much.

BREYER: Thank you. Transcript provided by NPR, Copyright NPR.

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