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Reading the Constitution: Why I Chose Pragmatism, Not Textualism
A provocative, brilliant analysis by recently retired Supreme Court Justice Stephen Breyer that deconstructs the textualist philosophy of the current Supreme Court’s supermajority and makes the case for a better way to interpret the Constitution .
The relatively new judicial philosophy of textualism dominates the Supreme Court. Textualists claim that the right way to interpret the Constitution and statutes is to read the text carefully and examine the language as it was understood at the time the documents were written.
This, however, is not Justice Breyer’s philosophy nor has it been the traditional way to interpret the Constitution since the time of Chief Justice John Marshall. Justice Breyer recalls Marshall’s exhortation that the Constitution must be a workable set of principles to be interpreted by subsequent generations.
Most important in interpreting law, says Breyer, is to understand the purposes of statutes as well as the consequences of deciding a case one way or another. He illustrates these principles by examining some of the most important cases in the nation’s history, among them the Dobbs and Bruen decisions from 2022 that he argues were wrongly decided and have led to harmful results.
The relatively new judicial philosophy of textualism dominates the Supreme Court. Textualists claim that the right way to interpret the Constitution and statutes is to read the text carefully and examine the language as it was understood at the time the documents were written.
This, however, is not Justice Breyer’s philosophy nor has it been the traditional way to interpret the Constitution since the time of Chief Justice John Marshall. Justice Breyer recalls Marshall’s exhortation that the Constitution must be a workable set of principles to be interpreted by subsequent generations.
Most important in interpreting law, says Breyer, is to understand the purposes of statutes as well as the consequences of deciding a case one way or another. He illustrates these principles by examining some of the most important cases in the nation’s history, among them the Dobbs and Bruen decisions from 2022 that he argues were wrongly decided and have led to harmful results.
368 pages, Paperback
Published June 10, 2025
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About the author
Stephen Breyer
22 books38 followersStephen Gerald Breyer is an American lawyer and jurist who has served as an associate justice of the Supreme Court of the United States since 1994. He was nominated by President Bill Clinton, and replaced retiring justice Harry Blackmun. Breyer is generally associated with the liberal wing of the Court.
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Displaying 1 - 30 of 144 reviews
October 17, 2024
Presently, there seems intense frustration with the 9 members of the U.S. Supreme Court, with the level of confidence in the land's highest court at 25%, a 50 year low, down from 36% in 2021. Reading the Constitution: Why I chose Pragmatism, Not Textualism by former Associate Justice of the U.S. Supreme Court, Stephen Breyer, represents an excellent behind-the-scenes look into the decision making process within the Supreme Court.
The U.S. Constitution, the bedrock of the American republic is said to be the shortest governing document of any major nation. The 7 original articles & 27 amendments are a scant 27 pages in total. There are 4,543 words, or 7,591 words with the amendments included, the first 10 of which set forth the Bill of Rights.
While the initial chapters are perhaps heavy-going for readers not trained in legal terminology & court processes, Breyer's book provides considerable insight into how cases are decided and more importantly, the underlying approach used by the judges.
Instead of viewing the 9 members of the Supreme Court on a conservative/liberal framework, we come to understand the dependence on the words of a specific text or statute by some judges, called "textualism" or "originalism", while Breyer & others apply a more pragmatic or "purpose-based" approach to decision-making.
Breyer points to the court's long-term dependence on Stare Decisis or "let the decision stand", allowing legal precedent to be a guiding force that provides what he terms "stability within the law". As an example. this practice has been overturned by the current court's more conservative members in the case of Roe vs. Wade, defining a woman's right to have an abortion.
Because Stephen Breyer, prior to becoming a judge, worked on the Senate Judiciary Committee headed by Sen. Ted Kennedy, he came to understand how laws come to be formulated. This occurs not merely with members of congress hashing out details in a room but rather through the efforts of many within the legislative branch of government interacting with labor unions, business organizations, public interest groups & highly paid lobbyists, all playing a role, sometimes a forceful one.
Breyer inserts historical references to some of the most celebrated Supreme Court justices, as when he quotes Judge Learned Hand:
As an example, George Washington & others had a keen interest in maintaining free speech but could not have anticipated the complications that come with the Internet vs. 18th century printed newspapers.
And while they may have had an understanding of the need for a 2nd amendment guaranteeing the right to bear arms by militias at a time when the country had no standing army, they could not have foreseen the impact of an AR-15 or AK-47 in private hands, while living in an age when the word "arms" meant single-shot muskets and swords.
In particular, Stephen Breyer comments:
Apart from an occasionally heavy dependence on legal terminology, Stephen Breyer's Reading the Constitution: Why I Chose Pragmatism, Not Textualism is a formidable inside look into historical & more recent Supreme Court decision making. *Within my review are photo images of 3 Supreme Court judges: Stephen Breyer; Learned Hand; and Oliver Wendell Holmes.
The U.S. Constitution, the bedrock of the American republic is said to be the shortest governing document of any major nation. The 7 original articles & 27 amendments are a scant 27 pages in total. There are 4,543 words, or 7,591 words with the amendments included, the first 10 of which set forth the Bill of Rights.
While the initial chapters are perhaps heavy-going for readers not trained in legal terminology & court processes, Breyer's book provides considerable insight into how cases are decided and more importantly, the underlying approach used by the judges.
Instead of viewing the 9 members of the Supreme Court on a conservative/liberal framework, we come to understand the dependence on the words of a specific text or statute by some judges, called "textualism" or "originalism", while Breyer & others apply a more pragmatic or "purpose-based" approach to decision-making.
Breyer points to the court's long-term dependence on Stare Decisis or "let the decision stand", allowing legal precedent to be a guiding force that provides what he terms "stability within the law". As an example. this practice has been overturned by the current court's more conservative members in the case of Roe vs. Wade, defining a woman's right to have an abortion.
Because Stephen Breyer, prior to becoming a judge, worked on the Senate Judiciary Committee headed by Sen. Ted Kennedy, he came to understand how laws come to be formulated. This occurs not merely with members of congress hashing out details in a room but rather through the efforts of many within the legislative branch of government interacting with labor unions, business organizations, public interest groups & highly paid lobbyists, all playing a role, sometimes a forceful one.
Breyer inserts historical references to some of the most celebrated Supreme Court justices, as when he quotes Judge Learned Hand:
Working to interpret statutes is akin to a musician playing a musical score. The meaning of a specific sentence may be more than that of the separate words, just as a melody is more than the notes. The music must remain true to the composer's creation but ultimately, a musician must combine an approach that matches the performers' own talents, abilities & creativity.Breyer feels that there is a need for "interest-balancing" that is lost when judges pay too much attention to the words alone in reaching a decision, as "originalists" fail to consider the consequences of an interpretation of the Constitution, especially when current linguistic usage has shifted over time.
As an example, George Washington & others had a keen interest in maintaining free speech but could not have anticipated the complications that come with the Internet vs. 18th century printed newspapers.
And while they may have had an understanding of the need for a 2nd amendment guaranteeing the right to bear arms by militias at a time when the country had no standing army, they could not have foreseen the impact of an AR-15 or AK-47 in private hands, while living in an age when the word "arms" meant single-shot muskets and swords.
In particular, Stephen Breyer comments:
There is an overarching, practical need to maintain the values that lie at the heart of a document that is meant to last; in other words, to maintain a workable Constitution. And, only by understanding the detailed intentions or purpose of those who wrote a statute can its scope be fully appreciated in light of those who will be affected by it.My main thought in assessing the Supreme Court's fateful "Citizens United" decision that corporations are “persons” within the meaning of the Equal Protection Clause of the Fourteenth Amendment, then it should also be recognized that the American Constitution is not a forever-fixed document but rather a living entity, subject to its own evolutionary possibilities.
Apart from an occasionally heavy dependence on legal terminology, Stephen Breyer's Reading the Constitution: Why I Chose Pragmatism, Not Textualism is a formidable inside look into historical & more recent Supreme Court decision making. *Within my review are photo images of 3 Supreme Court judges: Stephen Breyer; Learned Hand; and Oliver Wendell Holmes.
April 7, 2024
Former Justice Breyer in his latest book discusses, analyses, and critiques textualism and originalism and argues that such interpretative methods do not fit within the historical context of interpreting the Constitution. He argues that the best way and the historical way to analyze and interpret the Constitution is through a pragmatic purpose oriented approach. In support of this argument he cites lots of Supreme Court cases from Mcculloch v.Maryland to Dobbs to Lochner and analyzes the textualist approach verses the pragmatic/workable constitution approach.
I give it four stars not for any flawed analysis but because of he is hopeful and stresses compromise, listening to the other side, and making certain that the public trust in the Court isn’t eroded. Given the supermajority on the court that takes a textualist/originalism approach and their recent opinions public trust has already eroded and we are in a paradigm shift on the court. This shift serves not to expand a workable constitution as former chief justice john Marshall espouses but use textualism and originalism to do the opposite.
I give it four stars not for any flawed analysis but because of he is hopeful and stresses compromise, listening to the other side, and making certain that the public trust in the Court isn’t eroded. Given the supermajority on the court that takes a textualist/originalism approach and their recent opinions public trust has already eroded and we are in a paradigm shift on the court. This shift serves not to expand a workable constitution as former chief justice john Marshall espouses but use textualism and originalism to do the opposite.
March 30, 2024
Phenomenal! (I say this as someone who favours both textualism and originalism).
In these pages Justice Breyer masterfully (and fairly) argues for his view of Constitutional and statutory interpretation. I must admit, he might have won me over on legislative history, which I have always thought of as useless.
Many today think "conservative" Justices do nothing more than impose their policy preferences on the nation, and I'm glad to say that Justice Breyer dispensed with this myth. The battle on the Supreme Court is about methodology, not politics.
I almost gave this book a 4-star rating, as I was frustrated with Justice Breyer's description of the majority's rationale behind Dobbs, specifically regarding stare decisis. The majority believed that they had assessed all stare decisis considerations (reliance interests and the like) and that none of them were a barrier to the overturning of Roe and Casey. Justice Breyer, of course, disagrees with that assessment. That is fine. I just wish he did not make it seem as if the majority basically ignored any serious consideration of stare decisis in that case.
Other than that, this is a great book, whether you are a liberal, conservative or anything else. I encourage all to read it, especially those who believe judges like Justice Breyer simply substitute their own personal views for what the law is.
In these pages Justice Breyer masterfully (and fairly) argues for his view of Constitutional and statutory interpretation. I must admit, he might have won me over on legislative history, which I have always thought of as useless.
Many today think "conservative" Justices do nothing more than impose their policy preferences on the nation, and I'm glad to say that Justice Breyer dispensed with this myth. The battle on the Supreme Court is about methodology, not politics.
I almost gave this book a 4-star rating, as I was frustrated with Justice Breyer's description of the majority's rationale behind Dobbs, specifically regarding stare decisis. The majority believed that they had assessed all stare decisis considerations (reliance interests and the like) and that none of them were a barrier to the overturning of Roe and Casey. Justice Breyer, of course, disagrees with that assessment. That is fine. I just wish he did not make it seem as if the majority basically ignored any serious consideration of stare decisis in that case.
Other than that, this is a great book, whether you are a liberal, conservative or anything else. I encourage all to read it, especially those who believe judges like Justice Breyer simply substitute their own personal views for what the law is.
September 28, 2025
For someone with no background in law or jurisprudence, I was hoping this book would be an approachable introduction to the issue of textualism as guiding philosophy on the Supreme Court. As a lay person who pays attention to the news, I had been noticing for years that this judicial method had been leading to outcomes that seemed to me decided in ways that clearly misinterpreted the purpose of a law or were the judicial equivalent of Michael Scott driving his car into a pond because the GPS told him to take a right "right now" (i.e. considering just the wording of a law, the meaning of which is often not even agreed upon by the legislators who vote for the law, with no account taken of context or common sense). Breyer uses specific cases, mostly from his own time on the bench, to demonstrate how traditional methods of deciding cases, methods that include examining as many relevant sources that might help to explain what the legislators were actually attempting to do with a law in order to determine its constitutionality, differ from a purely textualist method of examining the text of the law and the relevant text of the Constitution and nothing more. I must admit that I was primed to agree with Breyer based on my prior impressions of textualism and the rulings it has produced, but I found this book to be a convincing demonstration of the severe limits of textualism and specifically how it is unable to fulfill the advantages that its proponents claim to be its greatest virtues. I am very glad to have read this book and I feel like I have learned a decent amount (for a layman) about how judges reach their conclusions.
So why did I give this book two stars? This book was almost painful to read. As I said, I have no background in law but I now feel like I've read a law textbook and it was not easy. Much of this book is written like a legal decision with extremely dense explanations of the application of law, using terminology that I was not always familiar with, so I often had to read and reread sentences and whole paragraphs more than once and even then I wasn't always entirely sure I was understanding correctly. So as a prose stylist, I'd like to give Breyer -1 star, but the value of the content of the book salvaged the rating.
So why did I give this book two stars? This book was almost painful to read. As I said, I have no background in law but I now feel like I've read a law textbook and it was not easy. Much of this book is written like a legal decision with extremely dense explanations of the application of law, using terminology that I was not always familiar with, so I often had to read and reread sentences and whole paragraphs more than once and even then I wasn't always entirely sure I was understanding correctly. So as a prose stylist, I'd like to give Breyer -1 star, but the value of the content of the book salvaged the rating.
April 4, 2024
Interpreting the Constitution
Justice Breyer does an excellent job explaining the methods used in interpreting the US Constitution and why he prefers his method. I don’t believe that a Justice can make a decision that is not influenced by their personal values, worldview, and political philosophy. The book exposes a major weakness in our legal system. The weakness is that there is not an agreed-upon method in interpreting the US Constitution. That means there is no issue that is settled law regardless of past rulings. In the 20th century, political leaders were moderate either right or left of center. This weakness has become exacerbated in recent years by the political parties having become extremely conservative or liberal. This has led to the appointment of Justices with extreme political philosophies that have led to decisions based on the political philosophies of the majority. Justices have denied that their decisions are political but their decisions have told us otherwise. The public will continue to lose confidence in the court until moderate Justices are appointed or an agreed-upon method for interpreting the US Constitution is found.
Justice Breyer does an excellent job explaining the methods used in interpreting the US Constitution and why he prefers his method. I don’t believe that a Justice can make a decision that is not influenced by their personal values, worldview, and political philosophy. The book exposes a major weakness in our legal system. The weakness is that there is not an agreed-upon method in interpreting the US Constitution. That means there is no issue that is settled law regardless of past rulings. In the 20th century, political leaders were moderate either right or left of center. This weakness has become exacerbated in recent years by the political parties having become extremely conservative or liberal. This has led to the appointment of Justices with extreme political philosophies that have led to decisions based on the political philosophies of the majority. Justices have denied that their decisions are political but their decisions have told us otherwise. The public will continue to lose confidence in the court until moderate Justices are appointed or an agreed-upon method for interpreting the US Constitution is found.
February 20, 2025
It seems as if Breyer got sick of explaining his thought process so decided to write down his approach to and justification for many cases he has been a part of. It's interesting, clearly written, if a bit circular in its reasoning at times.
August 24, 2024
This book doesn't do what it says it does, largely because the examples that Justice Breyer selected to highlight were typically decided on matters other than textualism. This is particularly obvious in the first section of the book where he discusses statutory cases.
He stays a little closer to his intended goal in the latter portions, especially in the final section on paradigm shifts where he highlights some very recent and we'll publicized cases.
Taken as a whole, Justice Breyer comes across as being very outcome driven in his interpretive methods. If you lean toward textualism, his arguments will not sway you, butthey will concern you. If you do not favor textualism, you won't gain much in the way of new ways to articulate a case against it. And if you don't know what textualism is, or what it looks like in practice, this book will not help you understand it any better.
Finally, I want to note that even though Justice Breyer unapologetically disagrees with textualism and does so with passion at times in this book, he is careful to underscore the friendship that exists across the entire Supreme Court, and he is even more careful to refrain from quoting sitting justices when making his point. To his credit, most of the textualist quotes in this book come from the late Justice Scalia, so as not to galvanize readers against any particular current Justice or subset of justices.
He stays a little closer to his intended goal in the latter portions, especially in the final section on paradigm shifts where he highlights some very recent and we'll publicized cases.
Taken as a whole, Justice Breyer comes across as being very outcome driven in his interpretive methods. If you lean toward textualism, his arguments will not sway you, butthey will concern you. If you do not favor textualism, you won't gain much in the way of new ways to articulate a case against it. And if you don't know what textualism is, or what it looks like in practice, this book will not help you understand it any better.
Finally, I want to note that even though Justice Breyer unapologetically disagrees with textualism and does so with passion at times in this book, he is careful to underscore the friendship that exists across the entire Supreme Court, and he is even more careful to refrain from quoting sitting justices when making his point. To his credit, most of the textualist quotes in this book come from the late Justice Scalia, so as not to galvanize readers against any particular current Justice or subset of justices.
April 17, 2024
Justice Breyer takes down textualism/originalism in a compelling and thoughtful analysis that exposes the many limitations of this sort of approach. This book is very accessible to those of us without a legal education. The author's devotion to both the nation and the law is laudable and inspiring.
April 12, 2024
I took a Constitutional Law class during the last semester of my poli sci minor. It was the most interesting poli sci class I took because more than any other class, it revealed to me the proper roles and limits of the American government, in light of unrealistic criticisms from both the left and the right. Seeing this book at my local bookstore, as a new release, got me to pick it up instantly, to study my favorite area of political science, and I learned a lot more about Con Law as a result of reading it.
In Con Law, there are two broad views of interpreting the Constitution and statutes: originalism/textualism (they go hand-in-hand) and expansionism (Justice Breyer refers to this as "pragmatism" or a "purpose-based approach"). Typically, the former emphasizes a limited view of the Constitution and statutes and believes that interpretation should be limited to the expressed text of the statute or constitutional provision; conversely, the latter believes that beyond that, there are implied powers that assist the government in carrying out those expressed powers.
The textualist critiques of the pragmatists are that they ignore the text and that looking beyond the text is a no-no because it may cause the judge to be biased, but neither of these is the case. The text is important, and pragmatists don't deny that. However, they argue that that shouldn't be the only thing considered when determining the verdict of a case. Even though textualists believe that observing the plain text will determine its original meaning or intent, it just doesn't. Looking at the legislative history, trying to wear the legislator's shoes, and understanding the purpose of legislation gives infinitely more context to what the legislation means, what it was intended to do, and why it might be constitutional or otherwise. Using textualism only limits the tools used to deliberate cases. Justice Breyer provides several examples to illustrate these points.
Breyer's thoughts on paradigm shifts are also really interesting, and I can see how both sides of the argument could be true. The Supreme Court's majority is ideologically committed to textualism, and it's possible that because of that, assuming the Court sticks with that judicial philosophy, the paradigm shift is occurring.
But it's also the case that textualism, as Breyer described throughout the book, voids the "workable Constitution" that C.J. John Marshall described in McCulloch v. Maryland, and thus, we might not be making that paradigm shift. I find this one to be more believable (though my view is that a paradigm shift will occur in the opposite direction of what Breyer predicts). The two most conservative justices are Thomas and Alito, and the three Trump appointees, relatively, are moderate conservatives. They haven't taken as radical stances as the former two, and Breyer believes that considering they're new, they might shift in their positions as they become more tenured on the Court.
This current Supreme Court reminds me, too, of the New Deal Court. That time, the Court struck down a few of FDR's policies, and comparatively, aside from the unpopular Dobbs decision, this current Court has also struck down some of Biden's policies. But in both cases, due to their rulings, they lost trust among the public and other branches of government. Not that public opinion should influence their rulings, but it's the public and other branches that give the Court and its rulings legitimacy since the Court by itself doesn't have any enforcement power. Without that trust, their rulings mean nothing.
If the Court regains its legitimacy and public trust, it'll be as a result of shifting its collective judicial philosophy away from rigid textualism (from the ideological shift of at least two justices, my guess being the Chief Justice and at least one of Trump's appointees), like "the shift in time that saved nine" from the mid-1930s. This is, in a sense, a paradigm shift but not the one that Breyer predicted.
Everything aside, this was a fantastic book by Justice Breyer. A lot of things he mentioned were about things I was relatively familiar with, and I had similar predictions as him, as an avid learner of political science, history, and law. It's fun to see these views legitimized by a retired Supreme Court justice and explained in greater depth.
For those who want to start learning about Constitutional Law, this is a great book to read; even for those who have a history of learning Con Law like myself, this is a great book with insights and arguments that are valuable to add to anyone's repertoire.
In Con Law, there are two broad views of interpreting the Constitution and statutes: originalism/textualism (they go hand-in-hand) and expansionism (Justice Breyer refers to this as "pragmatism" or a "purpose-based approach"). Typically, the former emphasizes a limited view of the Constitution and statutes and believes that interpretation should be limited to the expressed text of the statute or constitutional provision; conversely, the latter believes that beyond that, there are implied powers that assist the government in carrying out those expressed powers.
The textualist critiques of the pragmatists are that they ignore the text and that looking beyond the text is a no-no because it may cause the judge to be biased, but neither of these is the case. The text is important, and pragmatists don't deny that. However, they argue that that shouldn't be the only thing considered when determining the verdict of a case. Even though textualists believe that observing the plain text will determine its original meaning or intent, it just doesn't. Looking at the legislative history, trying to wear the legislator's shoes, and understanding the purpose of legislation gives infinitely more context to what the legislation means, what it was intended to do, and why it might be constitutional or otherwise. Using textualism only limits the tools used to deliberate cases. Justice Breyer provides several examples to illustrate these points.
Breyer's thoughts on paradigm shifts are also really interesting, and I can see how both sides of the argument could be true. The Supreme Court's majority is ideologically committed to textualism, and it's possible that because of that, assuming the Court sticks with that judicial philosophy, the paradigm shift is occurring.
But it's also the case that textualism, as Breyer described throughout the book, voids the "workable Constitution" that C.J. John Marshall described in McCulloch v. Maryland, and thus, we might not be making that paradigm shift. I find this one to be more believable (though my view is that a paradigm shift will occur in the opposite direction of what Breyer predicts). The two most conservative justices are Thomas and Alito, and the three Trump appointees, relatively, are moderate conservatives. They haven't taken as radical stances as the former two, and Breyer believes that considering they're new, they might shift in their positions as they become more tenured on the Court.
This current Supreme Court reminds me, too, of the New Deal Court. That time, the Court struck down a few of FDR's policies, and comparatively, aside from the unpopular Dobbs decision, this current Court has also struck down some of Biden's policies. But in both cases, due to their rulings, they lost trust among the public and other branches of government. Not that public opinion should influence their rulings, but it's the public and other branches that give the Court and its rulings legitimacy since the Court by itself doesn't have any enforcement power. Without that trust, their rulings mean nothing.
If the Court regains its legitimacy and public trust, it'll be as a result of shifting its collective judicial philosophy away from rigid textualism (from the ideological shift of at least two justices, my guess being the Chief Justice and at least one of Trump's appointees), like "the shift in time that saved nine" from the mid-1930s. This is, in a sense, a paradigm shift but not the one that Breyer predicted.
Everything aside, this was a fantastic book by Justice Breyer. A lot of things he mentioned were about things I was relatively familiar with, and I had similar predictions as him, as an avid learner of political science, history, and law. It's fun to see these views legitimized by a retired Supreme Court justice and explained in greater depth.
For those who want to start learning about Constitutional Law, this is a great book to read; even for those who have a history of learning Con Law like myself, this is a great book with insights and arguments that are valuable to add to anyone's repertoire.
July 8, 2025
My first introduction to Justice Breyer’s writing was when I read his dissent in NYSRPA v. Bruen in the fall of 2022. I greatly admired his willingness to consider the state of American society, rather than a narrow focus on theoretical legal doctrines. This book stays true to the measured pragmatism he came to be known for during his tenure on the Court. While the writing is heavy with legal philosophy and can be difficult to follow, his flow of argumentation is well structured and compelling. The book spent a lot of time discussing the merits and deficiencies of a textualist approach to constitutional interpretation. In this way, it felt like it was largely written as an appeal to more conservative audiences. Breyer makes his case for what he calls pragmatism, not just out of personal preference, but as a necessary approach for sustaining the workability of the Constitution and even the Rule of Law itself. A fantastic book for those interested in learning more about the decision-making process of the justices and the reasons for many of the most controversial opinions coming out of the Court in recent years.
July 4, 2025
audiobooked this as well. was interesting. statutory interpretation cases were a slog. actually the whole book was a bit of a slog, mostly in the sense that i expected it to be all argumentative and it was argument-by-way-of-storytelling-about-cases. which was fine. didn’t get super forceful until the conclusion. breyer is extremely charming and his writing is very concise. a legend to me!
July 10, 2024
my grandmother gave this to me … thank you nainai i love you !!
obvi i agreed with breyer going in but he convinced me more !! well-argued, compelling, current !!
obvi i agreed with breyer going in but he convinced me more !! well-argued, compelling, current !!
January 3, 2025
This was very interesting to read as my first legal book having finished law school and passed the bar. Even with all my studies I did find parts of it hard to keep up with but I really enjoyed being pushed to think about hard questions when it comes to judicial power and the role of the judiciary. I would highly recommend this to anyone that’s interested in learning more about the operation of the Supreme Court but also about and how decisions get made - using interpretive tools. Great opening start to books to help me in my legal career!
August 20, 2024
If you want to understand the current Supreme Court’s turn toward orjginalism or textualism, this is the book for you, written by retired Supreme Court justice Stephen Breyer. I listened to the audiobook read by the author and he seems to be at the top of his game. Perhaps a little too detailed in some places—I know more than I ever wanted to know about defining pollution of navigable waters—Breyer musters much evidence to demonstrate that understanding legislative history and thinking about purposes and consequences of laws—what Breyer calls “pragmatism”—are as legitimate as judicial methods as textualism, and perhaps more humane and salutary for our republic. More than that, he demonstrates that originalism is in no way more “scientific” or stable as a judicial methodology, as decisions this term have already demonstrated (and which Justice Breyer) could not have anticipated. I found the chapters on “The Limits of Constitutional Textualism” and “Legal Stability: Stare Decisis” the most telling and the most informative for me. Although it was tough going in some sections, I am so glad I read this important book and I wish the sitting justices would.
June 14, 2024
Reading the Constitution
Justice Emeritus Breyer wrote here and brilliant, thoughtful, and penetrating analysis of constitutional interpretation aimed at the educated general public. It is incredible well-rounded, and respectful of multiple interpretive styles and I think wisely thinks we should all the useful and time honored techniques for this extraordinarily important work. It is easy to see why his arguments exist, why they have two sides, why both sides have merit, and why he landed where he did. We need some people like him on the bench. We don’t need 9 like him on the bench, but I would be very unhappy with 9 any 9 people have 1 philosophy on the bench. There is enough gray for left, right, originalist, purposiveist, and justices like Breyer. May we cultivate a healthy mix!
Justice Emeritus Breyer wrote here and brilliant, thoughtful, and penetrating analysis of constitutional interpretation aimed at the educated general public. It is incredible well-rounded, and respectful of multiple interpretive styles and I think wisely thinks we should all the useful and time honored techniques for this extraordinarily important work. It is easy to see why his arguments exist, why they have two sides, why both sides have merit, and why he landed where he did. We need some people like him on the bench. We don’t need 9 like him on the bench, but I would be very unhappy with 9 any 9 people have 1 philosophy on the bench. There is enough gray for left, right, originalist, purposiveist, and justices like Breyer. May we cultivate a healthy mix!
April 2, 2025
A brillant and insightful look into the mind of Stephen Breyer and how he approached and thought about the law during his time on the Supreme Court. I fully subscribe to his philosophy because the Constitution is not a suicide pact and to side with the Conservatives on the court is pure intellectual and national suicide.
The problem is, the other side doesn't really believe what they say. They are bad faith actors who know what they are doing is wrong but want power so...who cares? Given that the country is currently going down in flames, in no small part due to the Supreme Court, made reading this right now feel very surreal.
This is the issue with so many books like this: If you already realize this is true, you don't need to read it. If you don't believe it (or more likely don't care) you wouldn't read it anyways.
The problem is, the other side doesn't really believe what they say. They are bad faith actors who know what they are doing is wrong but want power so...who cares? Given that the country is currently going down in flames, in no small part due to the Supreme Court, made reading this right now feel very surreal.
This is the issue with so many books like this: If you already realize this is true, you don't need to read it. If you don't believe it (or more likely don't care) you wouldn't read it anyways.
May 11, 2024
My husband bought this book for me after seeing recently retired Justice Breyer promoting it on NPR. I am not a legal scholar and most things I know about our legal system I learned on Law and Order reruns, so this was a stretch for me. Justice Breyer must’ve been a very good professor, however, because it’s quite approachable and readable. It feels more like you’re taking a class than pleasure reading, but I found it worthwhile, especially in trying to understand how Roe v Wade could have been overturned in 2022 after almost 50 years. Even if you’re not a person who is polarized in your political views, this book will help you understand the genius of our Constitution and the endless debates over its interpretation. It has made me a better citizen, though with just as much frustration as before I read it!
June 29, 2024
Warning: this book is good, but it is filled with a lot of legal jargon which is understandable since it was written by a retired Supreme Court justice. There is a lot of information to unpack, and you are getting his opinion about specific cases and how he believes they should have been decided. It was very interesting, but just be forewarned it can be a snoozer in places unless you love reading about law.
September 4, 2024
“We make inferences in life so why wouldn’t we make them for the law?”
Listened to this on audiobook slowly but surely. I appreciated Breyer’s use of recent case law (Dobbs, Bruen) as well as foundational constitutional cases to highlight the rise of originalism in Supreme Court logic, and how it often fails to address our society’s most pressing policy issues.
Found some of the themes to be a bit repetitive.
Listened to this on audiobook slowly but surely. I appreciated Breyer’s use of recent case law (Dobbs, Bruen) as well as foundational constitutional cases to highlight the rise of originalism in Supreme Court logic, and how it often fails to address our society’s most pressing policy issues.
Found some of the themes to be a bit repetitive.
December 3, 2024
Laudable effort at expounding on the puprosivist approach to law, but the book falls short of making the cohesive, coherent message that originalist apostles often do. While complexity seems to be a feature, not a bug of Breyer’s philosophy, the lay reader (like myself) might perceive this book as having missed the forest for the trees.
July 13, 2024
Breyer spends a little too much time telling us what he is going to address in this book, then addressing it and then summarizing again what he told us. But his main points are important. He makes a good case for why textualism and originalism have not yielded wise decisions on the Supreme Court, and why we should always consider history and consequences. Recent history confirms this -- look at the consequences of recent gun decisions and the Dobbs decision on abortion -- what a mess we are in because of these decisions. For me, one of the most interesting parts of the book was the last part where Breyer discusses previous paradigm shifts on the court and asks whether we are now in another paradigm shift--perhaps but it isn't clear yet. One thing the book makes clear is how much the court has become political and how the justices with a fixed point of view are really unable to demonstrate much of a "judicial temperament."
January 19, 2025
It was OK. Prefer the writing of other Justices however.
May 19, 2024
Justice Breyer writes on several occasions in this book that interpreting the law is not a science. There is no one unified, single approach to legal interpretation that will always provide the right and just answer to a statutory or constitutional dispute.
He argues, contra the so-called textualists or originalists on the current US Supreme Court, that a more pragmatic approach to legal interpretation will yield superior results. I listened to this as an audio book, so I can't really dig up specific quotes or lists, but he often mentions that a pragmatic "judicial instinct" will take account of
* the stated purpose(s) of the law
* the stated values that led to a law's passage
* the original debates and committee reports that led up to the law's passage
* the historical interpretation of the law
* the workability of the proposed interpretation
* the practical effects of the proposed interpretation
* and, certainly, the text and original interpretation of the law
The question in the back of Breyer's mind, and also the minds of the so-called textualists, is how to limit judicial overreach. Is there a single interpretative strategy that will prevent judges from substituting the law with their own notions of good or right? Breyer thinks there is not, though he thinks that a judges that take seriously the bullet points above (along with others that I've certainly overlooked) will to a great extent rein in their temptation to overreach.
The book can be frustrating for the very reason that Breyer wrote it: readers looking for simple answers will encounter an experienced Supreme Court Justice who says there is no such thing when it comes to interpreting the law.
He argues, contra the so-called textualists or originalists on the current US Supreme Court, that a more pragmatic approach to legal interpretation will yield superior results. I listened to this as an audio book, so I can't really dig up specific quotes or lists, but he often mentions that a pragmatic "judicial instinct" will take account of
* the stated purpose(s) of the law
* the stated values that led to a law's passage
* the original debates and committee reports that led up to the law's passage
* the historical interpretation of the law
* the workability of the proposed interpretation
* the practical effects of the proposed interpretation
* and, certainly, the text and original interpretation of the law
The question in the back of Breyer's mind, and also the minds of the so-called textualists, is how to limit judicial overreach. Is there a single interpretative strategy that will prevent judges from substituting the law with their own notions of good or right? Breyer thinks there is not, though he thinks that a judges that take seriously the bullet points above (along with others that I've certainly overlooked) will to a great extent rein in their temptation to overreach.
The book can be frustrating for the very reason that Breyer wrote it: readers looking for simple answers will encounter an experienced Supreme Court Justice who says there is no such thing when it comes to interpreting the law.
May 9, 2024
The thoughtful former Justice argues against relying solely on textualism and originalism, but instead argues for also using statutory purpose, legislative history, precedent, and workability. Justice Breyer illustrates his points by discussing individual cases. In explicating his pragmatic, sometimes apparently instinctual decision making, Justice Breyer also sometimes demonstrates the inconsistency of his method, as when he discusses the two cases addressing display of the Ten Commandments.
August 4, 2025
An interesting look into the former Justice's legal views. This was given to me by my father and I enjoyed diving into the case law that seems to be changing so rapidly.
April 29, 2024
An Eye-Opening Look at Supreme Court Work
Well worth the read (and rereading in places) to understanding how today’s and yesterday’s Court thinks about cases before it. Commended to all professions, especially lawyers, teacher, politicians, and thoughtful citizens of the USA. -Paul
Well worth the read (and rereading in places) to understanding how today’s and yesterday’s Court thinks about cases before it. Commended to all professions, especially lawyers, teacher, politicians, and thoughtful citizens of the USA. -Paul
May 16, 2024
Breyer writes in an explanatory and accessible style. I remembered many of the examples, though the law is often confusing to me - a secret language spoken by priests. But I learned a lot about textualism and originalism which was helpful since these terms are in lots of news articles. Now that I know, it was utterly headscratching. An intelligent child could see what's wrong with textualism. Consulting dictionaries? Does anybody in the judiciary know how dictionaries are compiled, how they change, how they also can be flawed? Not using legislative histories? It's just nutty, as nutty as hewing to textualism in religion (especially ludricous when using a book in a language not your own, set down by people centuries removed from your experience). Why not, then, skip having judges at all? I'm sure a good AI program can come up with judgments using textualism and, as for originalism, as Breyer points out, no one living today can fully get into the mindset of the world when the Constitution was written and we were warring with our master Brittania. Just ask L.P. Hartley.
April 23, 2024
I found the book uneven. I enjoyed learning about legislative history’s role in determining the Justice’s ruling on cases, but if his ultimate goal was to instruct laymen on judicial outcomes, I found the legalese difficult to understand the justices’ role in their determination.
April 9, 2024
This is a book that should be listened to because it has a lot of dry legal writing in it. I listened to it on Audible and feel that Stephen Breyer's vocal emphasis and feeling for the subject made it understandable and informative. His analysis of the law of 20 seminal cases with first class expositions of the pros and cons convinced me his pragmatic results-oriented arguments held greater promise for workable legal outcomes than the originalist and textualist positions of the conservative majority of the present court. It was an education for a non-lawyer like me. Now I have a better understanding of the issues that were argued in historic cases like Heller and Dobbs. Breyer writes that the court responded to the issues of the times by outlining important historical movements and how the court reacted to them.
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