Retired Supreme Court Justice Believes American’s Rights Are Subject to Changing Trends

by Vern Evans

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Retired U.S. Supreme Court Justice Stephen G. Breyer wants America to know that today’s high court isn’t pragmatic. For good measure, he declares that he is, especially when it comes to interpretating law.

That’s not just conjecture. That’s laid out in the title to his new 250-page book, “Reading the Constitution: Why I Chose Pragmatism, Not Textualism.” It’s a gaslighting of the U.S. Constitution, an attempt to sway opinion that rights protected by the founding document aren’t applicable today, since society and technology have changed since 1791. Justice Breyer argues that the words written don’t mean what the Founders meant because reading them over 200 years later changes the meaning.

The liberal justice retired under pressure from Democrats to ensure President Joe Biden would appoint at least one younger liberal justice to the Supreme Court. In 2022, Justice Breyer was succeeded by Justice Ketanji Brown Jackson, a former Breyer clerk.

Dueling Jurisprudence

The Washington Post offered a glowing review of Justice Breyer’s book, which rejects the legal doctrines of originalism and textualism that have been the favored approaches by several sitting Supreme Court justices, including Justices Clarence Thomas, Samuel Alito, Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett. That was also the legal philosophy of the late Justice Antonin Scalia. Originalism is the theory that constitutional text should be given the original public meaning at the time in which a law was enacted. Textualism is the legal interpretation that focuses on the plain meaning of a text of laws, emphasizing how the Constitution was understood at the time of ratification in 1788 and the subsequent Bill of Rights’ ratification in 1791.

That contrasts sharply with Justice Breyer’s constitutional pragmatist approach, which instead of focusing on what lawmakers meant with the words they chose to include in the Constitution and laws, considers what is the likely consequence of interpretations. Justice Breyer believes in a living Constitution or one that isn’t anchored by words lawmakers chose. Rather those meanings are reapplied by modern interpretations of those meanings. This judicial philosophy is an excuse to allow judges to act like kings (or queens) make law instead of interpreting and apply the law as enacted by the “people’s” elected representatives or the Founding Fathers.

Justice Breyer writes in his 250-page book, his latest of a dozen books, that originalism and textualism get it wrong – especially when it comes to the Second Amendment. Justice Breyer said that applying the conservative approaches of originalism and textualism is an impossible task for what are supposed to be the sharpest legal minds in the nation. He says justices aren’t historians and expecting them to know the history of how a law was drafted at the time doesn’t help the Supreme Court when it comes to “answering contested historical questions or applying those answers to resolve contemporary problems.”

Relitigating Bruen… and Heller

Justice Breyer points to the Supreme Court’s Bruen decision as an example. That case, of course, affirmed what the Supreme Court held in the 2008 Heller decision, that the Second Amendment is an individual right. The Bruen decision held that the right to keep and bear arms may be exercised in public as well as in the home.

Unsurprisingly, Justice Breyer wrote a dissenting opinion in Bruen, which was joined by Justices Sonia Sotomayor and Elena Kagan. Justice Breyer also dissented in the Supreme Court’s Heller decision.

“In my view, when courts interpret the Second Amendment, it is constitutionally proper, indeed often necessary, for them to consider the serious dangers and consequences of gun violence that lead States to regulate firearms,” Justice Breyer wrote in his Bruen dissent.

The Washington Post points out that Justice Breyer argues that it is unfathomable to think that the Founders could have imagined the United States today, with large metropolises and the advances in technology that brought the muzzleloading muskets to the Modern Sporting Rifles (MSRs) today.

“In part for these reasons, guns today pose a unique threat to American society if not properly regulated,” Justice Breyer writes in his book. “But originalism says that judges cannot consider these modern developments and practical realities. Nor can judges weigh the resulting interest of federal, state, and local governments in regulating guns to protect the health and welfare of all their citizens.” But it is not the role of the judiciary to weigh interests. That is the judgement of elected bodies within the constraints imposed by the Constitution, which includes the means for the people to amend it if necessary or sufficiently desired.

Limiting Founders’ Visions

Justice Breyer’s argument, though, falls flat. Justice Breyer is actually arguing that the Founders could not have imagined that the very rights they bound the government from infringing would be applicable today. His argument is that the Second Amendment should have withered because America grew and technology advanced. That’s not at all what the Founders intended. They agreed that rights are endowed to the people by “their Creator.” That’s a timeless authority, unlike governments. The Founders just shook off the tyrannical government from the British Crown. The principles of limited government and individual liberty and freedom articulated in the Declaration of Independence and enshrined in the U.S. Constitution are immutable and timeless. They exist to constrain the government and prevent tyranny.

Justice Breyer would unmoor those rights from the anchor that steadies them in the shifting tides of public opinion and set them adrift. That would make rights unrecognizable, a passing theory instead of bedrock truths.

None of this is unexpected. Justice Breyer’s book is another chance to grab headlines and attempt to shift opinion from which he was in the minority in two major Second Amendment cases. The late Justice John Paul Stevens, who also wrote the dissent in Heller, attempted his own rejection of history, originalism and foundational rights when he published a similar book in his retirement.

Justice Stevens once called the Second Amendment a “relic of the 18th Century” in an op-ed published The New York Times in 2018. In his memoir, “The Making of a Justice,” he claimed that Heller was “Unquestionably the most clearly incorrect decision that the Court announced during my tenure on the bench.”

Americans should expect that the justices sitting on the Supreme Court’s bench should be able to examine the historical evidence of what the words of the law meant at the time they were passed. This criticism ignores that our judicial system is an adversarial one where the parties bring forth expert witnesses that can include historians. This is something Justice Thomas explained writing for the majority in Bruen. That’s not too high of a bar to expect of the leading legal minds interpreting the law. That’s the very reason these justices are nominated by the president and confirmed by the U.S. Senate. That’s why they endure hours, if not days, of public and Senate scrutiny. It’s also why they are appointed for life.

Post-bench books mourning losses on key Supreme Court decisions might be a way to earn a living in retirement. But, they’re not the way our courts should be searching for guideposts for deciding future judicial decisions.

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