The subtitle of retired Justice Stephen Breyer’s account of how judges read, interpret, and apply
legal texts might suggest that pragmatism and textualism are mutually exclusive. But it turns out
that Justice Breyer embraces both approaches, pragmatism being the overarching judicial
posture that motivates his adoption of multiple tools, including a commitment to text. Thus, he
advocates “a method [of judging] that considers constitutional values, purposes, and workability,
not just text” (p.194). A non-exclusive regard for text, in other words, is not tantamount to total
disregard for it. Reading the Constitution concretely demonstrates Justice Breyer’s use of such
a method.
The book will appeal to legal professionals, but also to informed general readers and Court
watchers who are curious about how Justice Breyer views the judge’s role on the nation’s
highest court at a time when ideological tensions run so high. While Justice Breyer by vocation
is also a legal scholar, he welcomes a broad readership, and so Reading the Constitution is not
at all stereotypical academic fare, neither theory- nor jargon-laden. Instead, he describes in
detail various actual cases, many from during his tenure on the Court, drawing on opinions,
including his own, to illustrate the relative virtues of competing judicial methods. Although aimed
at a large audience, he does not skimp on legal specifics. Any text that refers to the
Administrative Procedures Act, as of course a book by Justice Breyer must do, already assumes
a legally knowledgeable reader. Thus, prospective law school students are well-situated to
benefit from a survey of various legal/political conundra and their more or less satisfying
solutions. If Justice Breyer piques your interest, and even if he doesn’t steer you from your
commitment to intensive Scalian hermeneutics, then you’ll emerge all the better poised to enter
your 1L year. Conversely, if Reading the Constitution bores you, then perhaps you should
explore alternative career options.
Bookended by a preface and concluding remarks (plus a note about Bluebook citation style!),
Reading the Constitution has five parts, beginning with an overview of the competing
purpose-based and textualist approaches to judging. Part II treats interpretation of statutes, i.e.,
federal laws enacted by Congress. Part III turns to the Constitution, highlighting the issues
peculiar to a document drafted in large part centuries ago with language more abstract and
intentionally vague than most ordinary statutory language. The second part is where much of
the discussion of textualism unfolds, while part III implicates both textualism and its cousin,
originalism. Given the relative brevity of the constitutional text, textualism alone can get one only
so far. Originalism, then, supplies a way to infer the drafters’ intentions and the
contemporaneous “public understanding” of the enacted text from historical circumstances, for
example, the history of arms technology, ownership, and usage at the time of the drafting of the
Second Amendment (p.128). Justice Breyer identifies weaknesses arising from the Court’s lack
of expertise in historical investigation and its refusal to consider both the overriding purposes of
the amendment and the present day consequences of a historically bound ruling.
Part IV makes the case for judicial consideration of the “workability” (passim) of a statute or
Constitution as a legitimate end, especially when judges are confronted by inscrutable text,
which requires taking account of, e.g., legislative history, prior practice, congressional purpose,
and values, to produce a meaningful and fair outcome. The final part examines three cases from
the 20th century (e.g., Lochner) that signaled “paradigm shifts” on the Court, significant
jurisprudential changes of course due in part to social, economic, cultural, and technological
change, nationally and globally (pp.229 et seq.). To conclude part V, Justice Breyer considers
whether the current textual/originalist turn on the Court portends another paradigm shift. He
equivocates, explaining that at this stage it is too early to know.
Throughout Justice Breyer compares the benefits and drawbacks of pragmatism and textualism.
For example, he shows how too strict a devotion to textualism can fail to achieve its purported
goal of avoiding a judge’s “substitution” (passim) of his own political preferences for that of
Congress. So, too, his own pragmatic approach can advance workability over the long haul
even if his preference “in a difficult case [for] exercise of judicial instinct, likely informed by
experience” exposes his method to the charge of admitting bias into the calculus (p.94). But one
comes away from Justice Breyer’s prescriptions with a sense that the textualist who adamantly
eschews extra-textual sources of evidence of the law fails to acknowledge that the law is not,
pace Justice Neil Gorsuch, merely an assortment of “words” (p.26), but is rather an elaborate
sociopolitical institution, robustly extra-textual, fortified by massive economic resources,
palpable enforcement mechanisms, and often impenetrably obscure hierarchies of authority. For
the textualist, the law—not only its ideal, but in fact—is an embodiment of rules sufficiently
organized to permit a prospective Chief Justice methodically to “call balls and strikes.” Yet
charitably, judiciously, Justice Breyer observes, “I find textualism, particularly in its more extreme
forms, if not wrong-headed, at least not useful” (p.27). The qualifying phrase “in its more
extreme forms” specifies the real target of his firm but even-toned polemic: not textualism per
se, of which Justice Breyer identifies multiple varieties and to which he subscribes when the
occasion calls for doing so, but a doctrinaire form of textualism, the measure of the value of
which ought at least to consider judicial utility, even at the expense of ideological purity.
Reading the Constitution is a personal, but not a biographical work. Justice Breyer builds his
arguments upon his own judicial experience, rather than from a taut jurisprudential theory.
Indeed, he justifies his frequent recourse to instinct and experience as a superior mode of
judging, precisely because a judge’s responsibility to each live case might include factors not
anticipated by one’s theory. Aside from passing references to career milestones and
experiences, including to his friendship with the late Justice Antonin Scalia, one learns little
about Justice Breyer’s life. Rather, one learns of the life of the mind of a Supreme Court Justice.
Many readers no doubt already have taken sides in the dispute Justice Breyer weighs in on, and
it would be imprudent to expect the book to convert many opponents. Still, it is certain that
readers of all stripes will find Reading the Constitution instructive, informative, and
thought-provoking.
