Stephen Breyer: Supreme Court Is Headed Down Wrong Path

Retired justice offers his take on Dobbs decision, originalism, and the court's current makeup
By Jenn Gidman,  Newser Staff
Posted Mar 19, 2024 3:37 PM CDT
Ex-Justice Stephen Breyer Has Some Thoughts on SCOTUS
Then-Supreme Court Associate Justice Stephen Breyer sits with fellow Supreme Court justices for a group portrait at the Supreme Court Building in Washington on Nov. 30, 2018.   (AP Photo/J. Scott Applewhite, File)

Stephen Breyer has a book coming out Tuesday, and between that and a new interview with the New York Times, the retired Supreme Court justice has a lot to say, about everything from abortion and the concept of originalism to the high court bench's current makeup.

  • Abortion: In his upcoming book, Reading the Constitution: Why I Chose Pragmatism, Not Textualism, Breyer devotes many pages to the Dobbs vs. Jackson Women's Health Organization ruling, which in June 2022 held that abortion wasn't a right under the US Constitution. He now tells the Times there are "too many questions" around the topic. "Are they really going to allow women to die on the table because they won't allow an abortion, which would save her life?" he notes. "I mean, really, no one would do that. ... And there'll be dozens of questions like that."

  • Current justices: Breyer appears to poke at Trump appointees Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett. "Several new justices have spent only two or three years at the court," he tells the Times. "Major changes take time, and there are many years left for the newly appointed justices to decide whether they want to build the law using only textualism and originalism" (textualism focuses on case semantics, while originalism looks at a case the way the Founding Fathers would have).
  • Past colleagues: "Sandra, David ... I would see eye to eye not necessarily in the result in every case, but just the way you approach it. And Tony, too, to a considerable degree," Breyer says, referring to former conservative justices Sandra Day O'Connor, David Souter, and Anthony Kennedy.
  • Two cases: Breyer mentions Dobbs and a big gun-rights case out of New York in his book as two examples of originalism and textualism run amok, per the Washington Post. "Originalism says that judges cannot consider ... modern developments and practical realities," he notes.
  • A warning: Breyer is also now "[sounding] an alarm" on the current court's direction, per the Times. "Something important is going on," he tells the paper, which notes he thinks the court has taken a "wrong turn"—though he also thinks there's still time to remedy that.
More from Breyer here. (More Stephen Breyer stories.)

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