Introduction
For more than forty years, I have served as a federal judge — about fourteen years on a court of appeals, and twenty-eight years as an Associate Justice of the Supreme Court. Judges of these courts often interpret words that appear in statutes or in the Constitution, explaining what they mean and how they apply.
When I explain to a group of middle-school students what this job is like, I use an example I found in a French newspaper. It goes like this: A high school biology teacher was traveling on a train from Nantes to Paris. She had with her in a wicker basket twenty live snails. The train conductor asked her what was in the basket; she told him; and the conductor then said, “You must buy a ticket for the snails.” “That’s ridiculous,” the teacher replied. “Well,” said the conductor, “read the fare rules. They say, ‘Passengers cannot bring animals on the train except in a basket, in which case they must buy a ticket for the animals.’” “But,” protested the teacher, “it means dogs or cats or perhaps rabbits, but not snails.” “Doesn’t it say ‘animals,’” said the conductor, “and isn’t a snail an animal?”
At this point, I ask the class: “Who is right?” The class breaks up into fierce argument. “What about mosquitos?”, says one. “Why would they want you to pay for snails?”, asks another. “But isn’t a snail an animal?”, says a third. I add, “There you have the interpretive job of an appellate judge. How do we find the ‘right’ answer?”
Though few cases involve snails, cases involving the meaning of statutory words, such as “any other law enforcement officer,” or constitutional words, say, “the right . . . to keep and bear Arms,” can pose questions of the same form. What is their scope? Just how — and to whom — do these legal words apply? There used to be what I call a traditional approach that judges used when they sought answers. The tradition, embodied in the work of judges like Justices Holmes, Cardozo, and Brandeis, and professors like Henry Hart and Albert Sacks, is practical. It sees legal interpretation as an activity that is pragmatic, undogmatic, and adaptive. It understands law as an untidy body of understandings among groups and institutions, inherited from the past and open to change mostly at the edges. It communicates its vision not through the application of any single theory, but rather through detailed study of cases, institutions, history, and above all, the human needs that underlie them. Georges Pompidou, describing something like this method as part of his and Charles de Gaulle’s vision of how government should work, said roughly that it:
is not a doctrine, it is an attitude. It is steadfast when essential matters are at play, but at the same time, it adapts to a changing world, taking account of actual circumstances. That attitude helps the nation’s diverse people work together productively, maintaining the unity and independence of the nation, while assuring the dignity of each individual.
Its practice requires dedication, sensitivity, and an awareness of the variety of the human needs and relationships that underlie our American legal institutions as they seek to help now more than 330 million Americans live together peacefully and productively.
Law, seen in this way, leads judges interpreting uncertain texts (and virtually all Supreme Court cases involve textual uncertainty as to meaning or application) not only to examine the words themselves, but also to recognize the limits of language in conveying meaning. When faced with such limits, the practical judge will often ask the question, “Why?” Someone wrote these words. What purpose do they serve? What purposes do they seek to further? What mischief do they seek to avoid? Justice Holmes said that a law’s “general purpose is a more important aid to . . . meaning than any rule which grammar or formal logic may lay down.”
Of course, an examination of purpose will not always (or exclusively) provide a key to the phrase’s meaning. In such cases, a judge might look to more. What is the context in which the phrase appears? What does history tell us of the social conflicts that the phrase or the statute seeks to settle? What are the consequences — for example, for legal institutions — of one interpretation as opposed to another? What values does the phrase or the law seek to further? When these questions are hard to answer, a purpose-oriented judge might further ask, “What would a reasonable (or idealized) legislator have thought about the purpose of, say, a statutory phrase?” Which questions are the most important, and which conclusions will prove of greater help to the judge, depends on the case at issue, as well as the judge’s experience, and whatever instinct he or she brings to bear upon the question at hand.
If, as I have said, something like this method is “traditional,” why have I written this Commentary — and recently published a book called Reading the Constitution — about it? Because more and more judges seem to be adopting a method of interpretation often called “textualism” (in statutory cases) or “originalism” (in constitutional cases). That method puts far greater weight upon the linguistic meaning of a legal text, defined as what an ordinary person would understand that text to mean, than the traditional, practical method. In addition, the stricter textualists try to avoid putting interpretive weight upon purposes, consequences, or values. My late colleague and friend Justice Scalia, for example, wrote that “textualism” emphasizes that words in a legal phrase (read with an eye toward “their full context”), mean what they conveyed to “reasonable people at the time they were written.” Other textualists have added that words in a statute or in the Constitution bear their “original public meaning,” and (as Justice Scalia added) tend to “reject judicial speculation about both the drafters’ extratextually derived purposes and the desirability of the fair reading’s anticipated consequences.”
Why? The textualist typically says that purposes are too difficult to find, and that, even if they were not, a statutory phrase may serve different, and opposing, purposes. They further contend that a description of purpose may reflect the views, or the language, of lobbyists or congressional staff members who are not elected, rather than the views of the elected member of Congress, and that the traditional search for purpose, consequences, and values allows unelected and life-tenured judges to substitute their own ideas of what is good for “the law” itself.
The textualist typically makes five important, related promises. First, the textualist believes that, comparatively speaking, textualism will suggest that there is a single right answer to interpretive problems. That fact promises fewer disagreements among judges and greater public faith in the courts. Second, the textualist promises that textualism means that judges will become less likely to overstep the bounds of their constitutionally assigned task. That task is to interpret statutes, not to substitute their own ideas of sound social policy for the text’s linguistically determined application. Third, the textualist promises that sticking to the text will help the legislator as well as the judge. This, the textualist contends, provides hope for the development of a determinative system, making legislative compromises easier and making it easier for Congress to incorporate competing purposes into a single statute. Fourth, the textualist promises that textualism will prove a fairer system, for the law will mean the same thing in the hands of every judge, thereby increasing the likelihood that it will treat like litigants alike. Fifth, the textualist contends that textualism provides the citizenry “fair notice of what the law is” by linking legal meaning to ordinary, semantic meaning.
These promises may help to account for textualism’s increased popularity. Indeed, one of my colleagues has said (perhaps somewhat tongue in cheek) that “we’re all textualists now.” However, I am not. Last year, I published Reading the Constitution to explain why. This Commentary builds upon the book, summarizing (and at times expanding) its main points in Parts I and II and offering — in Part III — an analysis of several cases, including Garland v. Cargill, Loper Bright Enterprises v. Raimondo, Corner Post, Inc. v. Board of Governors of the Federal Reserve System, and United States v. Rahimi, that were decided after the book was published. This analysis concludes with a prediction: While the Court may well be in the midst of a paradigm shift toward textualism and originalism, the unworkability of these approaches in practice will push the Court back toward the traditional approach — gradually and with time.
I have not tried, in either Reading the Constitution or this Commentary, to describe advantages and disadvantages of different interpretive methods in theory: many scholars have already done so. Rather, I have tried to draw upon my own experience as a judge and a Justice, using illustrative examples (particularly those where traditionalists and textualists likely disagree). I hope that by doing so, and, in particular, by explaining why in a particular case I disagree with the textualist approach, I can explain why, in my view, textualism will not work. It cannot keep its promises. To the contrary, textualism threatens to make it far more difficult for law to work well for Americans and for the Constitution to keep its own promises of crafting a workable governmental system, protecting democracy, and safeguarding basic human rights.
I might add that Justice Scalia and I used to debate the virtues of these different approaches, typically before student audiences. The audience would come away believing we were good friends — which we were. They might also remember what I thought was at the heart of the debate. I would say law must adapt. After all, “George Washington did not know about the internet.” Justice Scalia would reply, “I knew that.” Then he would remind me of the two campers, one of whom sees the other putting on running shoes. “Where are you going?”, he asks. “A bear’s in the camp,” the other responds. “You can’t outrun a bear,” says the first person. “Yes,” says the second, “but I can outrun you.” So too, Justice Scalia would argue, textualism and originalism did not need to be perfect; they just needed to be superior to the alternatives. And my system, he would say, was so complicated that only I could use it. I would reply that his system risked producing a Constitution (and laws) that no one would want. Who was right? I hope that this Commentary, alongside my book, will help convince some that a more holistic approach to statutory and constitutional interpretation points the way to a better interpretive path.
And if that better path is ignored? In the ninth century, a group of monks on the Island of Iona, led there by Saint Columba in the sixth century, produced the Book of Kells, a beautifully illustrated Gospel codex, which one can see to this day at Trinity College in Dublin. There are those who believe that the monks produced this book because they thought a great darkness had fallen over Europe and the Book of Kells could preserve a ray of light. My writing is not the Book of Kells, but, in my more pessimistic moments as I put pen to paper, I think of those monks.
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* Associate Justice (Ret.), Supreme Court of the United States; Byrne Professor of Administrative Law and Process, Harvard Law School. This Commentary contains material from my recent book, Reading the Constitution: Why I Choose Pragmatism, Not Textualism (available in French as Interpréter la Constitution américaine: La lettre ou l’esprit, published by Odile Jacob). I thank Simon & Schuster for permission to use it here. An abbreviated version of this Commentary was delivered as the Robert B. Silvers Lecture at the New York Public Library on March 26, 2024, and later published online. Stephen Breyer, Choosing Pragmatism Over Textualism, N.Y. Rev. of Books (May 23, 2024), https://www.nybooks.com/articles/2024/05/23/choosing-pragmatism-overtextualism-stephen-breyer [https://perma.cc/KYN6-Z2CQ]. I am grateful to the New York Review for allowing me to adapt and expand upon those remarks here. Thanks to the editors of the Harvard Law Review for their work on this piece. Finally, thank you to those acknowledged in my book: Provost John Manning, former Deans Robert Post and Martha Minow, Professor Cass Sunstein, Professor Paul Gewirtz, Associate Dean Alan Morrison, Sundeep Iyer, Dan Richardson, Sara Solow, Kyle Edwards, Sierra Polston, Eric Xu, Thomas Nielsen, Cody Kahoe, Steffi Ostrowski, Amy Vargo, Emma Reilly, and members of my own family. My special gratitude to Peter Matson and thanks to Pat Hass as well. Thanks to Fred Chase, Lisa Healy, Larry Hughes, and Johanna Li at Simon & Schuster. I am particularly grateful for the editing of Bob Bender.
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