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Justice Breyer warns of the perils of conservatives' judicial philosophy

SCOTT DETROW, HOST:

Earlier this week, I talked to retired Supreme Court Justice Stephen Breyer, who has a new book out called "Reading The Constitution: Why I Chose Pragmatism, Not Textualism." There is a lot to talk about right now when it comes to the Supreme Court. It's currently weighing whether or not to restrict abortion even further. And it's also considering whether or not presidents have full immunity from the law, a case that's delaying one of former President Donald Trump's criminal trials. I wanted to talk to Breyer about the immunity case. He didn't want to talk about it.

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

DETROW: Breyer wanted to steer the conversation back to the tension he focuses on in his book, the tension between pragmatism and textualism. Breyer, as you would guess from the book's title, favors pragmatism. That is, taking social and political factors into account when crafting a ruling, as well as thinking about how the ruling would affect the real world. And he's a critic of textualism, the idea that only the written word is law. But that school of thought - textualism - is what the majority of justices on the Supreme Court champion today.

Of course, weighing how a case affects the timeline of a criminal trial when the defendant is running for president is a pragmatic question. But Breyer did not want to weigh in on the court's current docket. He did talk about another key decision that affected a presidential election, Bush v. Gore, the 2000 landmark case that halted the Florida recount and effectively handed the election to George W. Bush. Although Breyer dissented, he said it was notable and important that Democrats accepted the ruling. That's a lesson he shared with students.

BREYER: Al Gore said, don't trash the court. 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 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 and 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: 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 the average person, you know, they're the ones that have to accept the rule of law. And you go talk to the people 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, it's literature there that really made an impression on me. Have you ever read Camus' book "The Plague"?

DETROW: Breyer is referencing a novel written by Albert Camus in 1947, and yes, I've read it. It's about a fictional plague that ravages an Algerian city. Breyer says he sees the novel as commentary on the pervasive xenophobic ideology of Nazi Germany.

BREYER: He asks 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 - one day to re-emerge. 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.

DETROW: Breyer says he's worried that textualism and how it is being used to interpret laws is weakening people's belief in the system.

BREYER: And weakening people's confidence in the system of law's ability to bring about a more harmonious 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: That was retired Supreme Court Justice Stephen Breyer. He served on the court from 1994 to 2022. And you can hear our full conversation on tomorrow's ALL THINGS CONSIDERED or in the Trump's Trials podcast. Transcript provided by NPR, Copyright NPR.

NPR transcripts are created on a rush deadline by an NPR contractor. This text may not be in its final form and may be updated or revised in the future. Accuracy and availability may vary. The authoritative record of NPR’s programming is the audio record.

Tyler Bartlam
Adam Raney
Scott Detrow is a White House correspondent for NPR and co-hosts the NPR Politics Podcast.

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