Textualism is the belief that the Constitution should be read as written by the founders instead of through its intentions shaped by time, which is what most of the court’s liberals — including Breyer before his retirement in 2022 — believe.
Breyer said in an NBC “Meet the Press” interview with Kristen Welker on Sunday that he understands that textualism is “attractive” to justices and simple to understand, but carries drawbacks.
“It’ll stop the judges from doing what they want. They’ll be bound by the text,” he said. “You say, ‘Sounds good.’ Sounds good, but it doesn’t work very well, in my opinion. And that’s why I’ve spent a year and a half trying to explain why.”
The justice argued that textualists ignore the context of history and the changes to the country over time that have shaped how the Constitution should be interpreted.
“Go back to 1788, ’89, ’87. Go back even to just after the Civil War, when we have the 13th, 14th, 15th Amendment,” he said. “You remember? You don’t remember. And I’m not even that old. But there were about half the population of this country that really weren’t represented in the political process, right? But they’re now part of the political process, as they should be.”
“You want to just go back to what people were thinking at that time? I’m not sure just what they were thinking at that time,” he continued. “But I do suspect that the fact that half the people in this country were not involved in the political process- they were supposed to stay home. And there were some that were enslaved. And we understand that. So, that’s one of the problems with just looking back into history.”
Breyer added that the textualist perspective, which has driven the court’s most notable and controversial opinions in recent years, is a “bad approach” to the judiciary.
The critiques follow his advice to the court just after he retired in 2022 about writing opinions that are too judicially rigid, claiming they can “bite you in the back.”
“You start writing too rigidly and you will see, the world will come around and bite you in the back,” Breyer warned.
“Life is complex, life changes. And we want to maintain insofar as we can — everybody does — certain key moral political values: democracy, human rights, equality, rule of law, etc. To try to do that in an ever-changing world.”
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