Choosing Pragmatism Over Textualism

Illustration by Oliver Munday

This essay is adapted from my Robert B. Silvers Lecture at the New York Public Library earlier this year, which was drawn from my Reading the Constitution: Why I Chose Pragmatism, Not Textualism (Simon and Schuster, 2024). The lecture and essay, like the book on which they are based, contain no revelations of private information, including within the Court or at conference. The descriptions and analyses refer to cases, legal opinions, articles, and books that are publicly available or to thoughts and analyses that are my own.

For more than forty years I 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 the Constitution.

When I explain to a group of middle school students what that job is like, I use an example I found in a French newspaper. A high school biology teacher was traveling on a train from Nantes to Paris. She had with her twenty live snails in a wicker basket. The train conductor told her, “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 half-fare 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?” “What about mosquitoes?” says one student. “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 legal cases involve snails, cases involving the meaning of words in statutes or the Constitution—such as “the right…to keep and bear arms”—pose similar questions. How and to whom do these legal words apply?

There has long been what I call a “traditional” approach, embodied in the work of judges like Oliver Wendell Holmes Jr., Benjamin Cardozo, and Louis Brandeis, and professors such as Henry Hart and Albert Sacks. It sees legal interpretation as pragmatic, undogmatic, and adaptive. It sees 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 through detailed study of cases, institutions, history, and above all the human needs that underlie them. Its practice requires dedication, sensitivity, and an awareness of the variety of the human needs and relationships that underlie our legal institutions, which now must help more than 330 million Americans live together peacefully and productively.

Seen in this way, the law requires judges interpreting indefinite or uncertain texts (and virtually all Supreme Court cases involve uncertainty as to a text’s meaning or application) both to examine the words themselves and to recognize the limits of language to convey meaning. When faced with such limits, a practical judge will often ask, What purposes do these words serve? What ends do they seek to further? What mischief do they seek to avoid? As Justice Holmes wrote, 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 a phrase’s meaning. In such cases, a judge might look deeper. 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 (or nonlegal) institutions—of one interpretation as opposed to another? What values does the phrase or the law seek to promote? When these questions yield no easy answers, a judge might further ask, What would a reasonable (or idealized) legislator have thought about the purpose of this statutory phrase? Which of these questions are the most important and which conclusions will prove of greater help depend on the case at issue, as well as the judge’s experience and instincts.

If, as I have said, something like this method is “traditional,” then you might wonder why I have written a book about it. The answer lies in a change taking root in the way in which many judges and lawyers interpret legal texts—a new method often called “textualism” or, in the case of constitutional texts, “originalism.”

What is “textualism”? In a nutshell, it is a method that puts greater, often exclusive weight upon the linguistic meaning of a legal text, defined as what an ordinary person would understand that text to mean. My late colleague and friend Justice Antonin Scalia, for example, put it this way: “textualism” holds 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.” Words in a statute or the Constitution, textualists say, must be given their “original public meaning.” And unlike those who follow a more traditional, practical method, textualists, such as Justice Scalia, tend to “reject judicial speculation about both the drafters’ extratextually derived purposes and the desirability of the fair reading’s anticipated consequences.” The stricter textualists thus avoid putting any interpretive weight on purposes, consequences, or values.

Why interpret the law in this way? Textualists typically say that purposes are too difficult to find, and that even if they were not, a statutory phrase may serve multiple, and even opposing, purposes. Textualists further contend that a description of purpose found in committee reports or other legislative history may reflect the views or the language of lobbyists or unelected congressional staff members rather than of elected members of Congress. The traditional examination of purpose, consequences, and values, textualists say, allows unelected, life-tenured judges to substitute their own ideas of what is good for the law itself.

Textualists then make four important, related promises. First, they suggest that there is a single right answer to each interpretive problem. A commitment to finding that single right answer will lead to fewer disagreements among judges and greater public faith in the courts.

Second, they promise that by following textualism, judges will become less likely to overstep the bounds of their constitutionally assigned task, which is to interpret the law, not to substitute their own ideas of sound social policy for the text’s linguistically determined application.

Third, textualists promise that sticking to the text will help the legislator as well as the judge. By following a set of linguistic and interpretive canons, they contend, judges will help develop a system in which Congress can compromise and incorporate competing purposes into a single statute, assured of the rules that judges will follow when it comes time to interpret the text.

Fourth, they promise 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 all litigants alike.

These promises may help to account for textualism’s increased popularity. Indeed, one of my colleagues has said (perhaps tongue in cheek), “We are all textualists now.” However, I am not. Of course our job is to interpret the words of a statute or the Constitution. And text is always the starting point. But in my view, removing most or all other interpretive tools from the judge’s tool kit is like denying a painter much of his palette. It goes too far. Textualism will not work. It cannot keep its promises. To the contrary, I fear that textualism will make it far more difficult for the Constitution to provide Americans a workable governmental system, one that protects democracy and safeguards basic human rights.

Justice Scalia and I used to debate the virtues of these different approaches, typically before student audiences. I would say often that law must adapt, since “George Washington did not know about the Internet.” Justice Scalia would reply, “I knew that.” Then he would remind me of the story of two campers, one of whom sees the other putting on running shoes. “Where are you going?” asks the first. “A bear’s in the camp,” responds the second. “You can’t outrun a bear,” says the first. “Yes,” replies the second, “but I can outrun you.” So too with textualism and originalism, argued Justice Scalia: they did not need to be perfect; they just needed to be superior to the alternatives. And my system of interpretation, 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.

The Constitution of the United States is the shortest governing document of any Western democracy. Its seven articles and twenty-seven amendments contain about 7,500 words. Its articles primarily create the federal government’s structure; its amendments, among other things, protect certain basic human rights. It helps to assure a democratic form of government, to safeguard individual liberties, to guarantee considerable equality, and to limit governmental power through checks and balances. Its written phrases are sometimes highly general (“the freedom of speech”) and sometimes very specific (“two Senators from each State”). Some provisions now seem out of date (like the Third Amendment, which restricts the quartering of soldiers in private homes); others are still of obviously vital importance (like the First Amendment).

The Constitution presents difficult interpretive problems. It contains multitudes of provisions, requirements, and prohibitions. And it must endure for the ages, even in times unimaginably different from the circumstances of its creation. The document’s abstract phrases, its underlying values, its varying objectives, and its need to endure—all these suggest that there will not be any single tool that, when applied to each of its provisions, can produce satisfactory answers.

In his landmark opinion in McCulloch v. Maryland (1819), Chief Justice John Marshall suggested just that. The Court had to decide whether the Constitution gave Congress the power to create a national bank. The language of the Constitution said nothing about banks. The Court nonetheless answered the question, “Yes.” Chief Justice Marshall looked at six different considerations.

First, he turned to past practice. What had others in government thought of the question over the preceding thirty years?

Second, he looked at the Constitution’s text. He observed that it limited the federal government’s powers, but still, “though limited in its powers,” that government was “supreme within its sphere of action.”

Third, he argued that the fact that the Constitution did not specifically refer to banks did not answer the question at hand. A constitution that “would partake of the prolixity of a legal code…could scarcely be embraced by the human mind.” Only “its great outlines should be marked, its important objects designated, and the minor ingredients which compose those objects be deduced from the nature of the objects themselves.” He continued, “It is a Constitution we are expounding.”

Fourth, he explained, the Constitution grants Congress the power to do what is “necessary and proper” to carry “into execution [its]…powers.” That phrase—known as the Necessary and Proper Clause—has a broad scope. For purposes of a national bank, Marshall explained, it meant that the explicitly mentioned powers to lay and collect taxes, to borrow money, to regulate commerce, and to support armies and navies implied the power to create a bank to assist the government in carrying out those tasks.

Fifth, Marshall observed that the Constitution is “intended to endure for ages to come and consequently to be adapted to the various crises of human affairs.” It would have thus been “unwise…to provide by immutable rules for exigencies which, if foreseen at all, must have been foreseen dimly, and which can be best provided for as they occur.” Constitutional interpretations must, in a word, prove workable and adaptable.

Sixth, the chief justice emphasized the Constitution’s purposes. It must not become, in his words, a “splendid bauble”:

Let the end be legitimate, let it be within the scope of the Constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but are consistent with the letter and the spirit of the Constitution, are Constitutional.

This foundational case rests upon an implied principle that judges only occasionally discuss explicitly, but that I believe a judge must keep in mind when interpreting the Constitution. It is, at bottom, a practical document. It must hold together a nation whose population has grown almost a hundredfold since the Founding. Whether we use the word “workable” or “viable” or “practical,” McCulloch’s underlying principle has long been the core of traditional constitutional interpretation. Marshall’s words “It is a Constitution we are expounding” are inscribed across the lower hall in the Supreme Court Building.

If that was Chief Justice Marshall’s view, then what of textualism? In the matter of constitutional interpretation (where the text’s words are often abstract), those who advocate textualism turn to its first cousin: originalism. Justice Scalia defined “originalism” as the “doctrine that words are to be given the meaning they had when they were adopted”—specifically, that the text should be “interpreted through the historical ascertainment of the meaning that it would have conveyed to a fully informed observer at the time when the text first took effect.”

One might well ask: If the original understanding of the Constitution is of paramount significance, then why not accord the same weight to Chief Justice Marshall’s understanding of interpretive methodology? After all, he was among the leaders of the Virginia Ratifying Convention. Surely his approach to constitutional interpretation should inform an originalist’s views. If not, then how does an originalist approach constitutional interpretation differently from Marshall in McCulloch?

I’ll begin with an important case that produced serious effects: the Supreme Court’s recent application of an “originalist” approach in New York State Rifle and Pistol Association v. Bruen (2022). The case concerned the constitutionality of a New York State law that required citizens to have a license to carry firearms, openly or concealed, in public. Did that law violate the Second Amendment, which says, “A well-regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed”?

In an earlier case, District of Columbia v. Heller (2008), the Court, by a vote of 5–4, had held that the amendment protects the right of a law-abiding citizen to possess a handgun in the home for purposes of self-defense. (I dissented.) Given that interpretation, the Court in Bruen asked, does the amendment protect the right to carry a handgun for self-defense outside the home as well? Applying originalism, the Court held that it did and therefore voided New York’s law. (I dissented in this case as well.)

The Court noted that lower courts, deciding similar questions, had applied a two-step analysis. First they would decide whether the challenged law regulates activity falling outside the scope of the Second Amendment right as originally understood. If so, the law did not run afoul of the Second Amendment. If the law did regulate protected activity, however, the lower courts would proceed to a second step, something the Court has called “means-end scrutiny.” They would consider “how close the law comes to the core of the Second Amendment right and the severity of the law’s burden on that right.” If the law burdened the right, the courts would analyze whether “the Government” could “prove that the law is ‘narrowly tailored to achieve a compelling governmental interest.’” This application of means-end scrutiny, which courts do when interpreting a variety of other constitutional provisions, would allow room for legislatures to regulate firearms while ensuring that those regulations did not intrude too far on the core Second Amendment right to self-defense.

The Court, however, wrote that the second part of this test used by lower courts was unnecessary. Instead, it focused solely on the “Second Amendment’s text, as informed by history.” It said that the proponents of a law regulating guns must “identify an American tradition justifying” the law’s requirements. In other words, they must prove that the law or regulation is “part of the historical tradition that delimits the outer bounds of the right to keep and bear arms.” And notably, in construing the Second Amendment’s text, the Court made sure to underscore that its interpretation was grounded in the “public understanding of [the] legal text in the period after its enactment or ratification.” Here is originalism pure and simple. Look to historical textual meaning—alone.

What is wrong with this approach? First, although history can often help judges interpret the Constitution, to tell them they must rely exclusively upon history imposes on them a task they cannot accomplish. Judges may have experience weighing a law’s objectives (its ends) against the methods used to achieve them (its means), but they may well not have experience finding the relevant history.

And aside from finding the history, there is the matter of interpreting it. To what extent, for example, should laws or regulations or rules dating back to the fourteenth century that addressed crossbows, lancegays, dirks, daggers, skeans, stilladers, and even Greek fire (tossed over a besieged city’s walls) determine the meaning of the constitutional word “arms” in the eighteenth century?

What to do, moreover, with the fact that historical understandings sometimes change? In Heller, the Court thought history showed that the Second Amendment right encompassed an “individual right to possess and carry weapons in case of confrontation.” The dissent thought the term “bear arms” was an idiom protecting only the right “to use and possess arms in conjunction with service in a well-regulated militia.” In an amicus brief for Bruen, a group of historical experts told the Court that the Heller dissent was right; and a group of linguistic experts said they had searched more than 120,000 texts written between 1760 and 1799 (as well as thousands of other historical texts) and found that the phrase “bear arms” was overwhelmingly used to refer to “war, soldiering, or other forms of armed action by a group rather than an individual.” Should the Bruen Court, in light of these discoveries, have revised its ruling in Heller?

Read Bruen and you will find a historical argument raging among different groups of judges who are not historians. The dissent pointed, for example, to thirteenth- and fourteenth-century English laws prohibiting persons from “going armed”; to early colonial and Founding-era laws, such as New Jersey’s and Virginia’s, forbidding the wearing of certain weapons in public; and to nineteenth- and twentieth-century laws of various states prohibiting the carry of firearms, with a few exceptions.

The Court thought these laws were not sufficiently analogous. Some were too old. Some were too recent. Some applied to too few people. Some did not involve licensing. Some applied only after an individual had threatened the peace. Some regulated only concealed, not open, carry. In light of this disagreement, the dissent observed that since analogy often depends upon the minor details of very old laws, the true answer to what historical analogies were valid was: Who knows? Put another way, not only are judges not historians, but historical analogies, like language, are at least to some degree indeterminate.

The second problem arising out of the Court’s use of originalist methodology in Bruen was even worse. Originalism dictates that judges should not consider the practical effect of a decision, including the interests of federal, state, and local governments in regulating guns. That presents a difficulty in part because of how drastically our nation has changed from the time the Founders wrote the Constitution. There were four million Americans then, and most of them lived in rural settings. Today there are more than 330 million Americans, a significant portion of whom live in densely packed cities. Gun technology has evolved, too, and the US is the world’s leader in the number of firearms possessed by civilians—nearly 400 million. (India is second.) In 2020 an average of about 124 people died from gun violence every day, a figure that reflects a 25 percent increase just compared with 2015.

Consider the number of mass shootings, the number of firearm-assisted suicides, the number of gun-related domestic homicides, the number of police officers killed by guns in the line of duty. And consider the evidence suggesting that limiting the number of guns and their carriage can help to limit the number of firearm deaths. Then consider Chief Justice Marshall, McCulloch, and the need for a workable Constitution. Should an interpretive approach grounded in that Constitution ignore these practical realities and the deadly consequences of striking down the efforts of democratically elected bodies to address them? Certainly not, I believe.

Another case, Dobbs v. Jackson Women’s Health Organization (2022), illustrates two additional problems with originalism. In Roe v. Wade (1973), the Court, by a vote of 7–2, held that the Constitution protects the right to obtain an abortion. The government retained some power to regulate that right, but it had less power to interfere with a woman’s right to choose an abortion early in her pregnancy. Nearly twenty years later, in Planned Parenthood of Southeastern Pennsylvania v. Casey (1992), the Court faced calls to overrule Roe but decided not to do so (though it adjusted the scope of the government’s ability to regulate abortion). And over the next three decades it several times reaffirmed Roe’s basic constitutional holding. In Dobbs, however, the Court (by a vote of 5–4) overturned all those earlier cases—which had been “the law of the land” and the law that millions of American women had relied on—and held that the Constitution afforded no protection to the choice to have an abortion.

The first problem with Dobbs’s application of originalism to abortion is what lawyers sometimes call the problem of “dead hand control.” When the Framers wrote the Constitution in 1787 and when the Reconstruction Amendments were enacted soon after the Civil War, not all “people” could vote for ratification. Enslaved people were not considered citizens. Women were not understood to be full members of the political community. Yet it seems that originalism would have us limit the kinds of liberty interests that the Fourteenth Amendment recognizes to those contemplated by men at a time when women were not considered to have a legal identity separate from their husbands. How can an interpretive methodology with so limited a view of which people are entitled to constitutional protection function in our modern society?

The second problem with originalism in Dobbs concerns stare decisis, a Latin phrase meaning that a court should generally stand by what has previously been decided. The doctrine of stare decisis is a long-standing principle of American law. It not only protects cases that later courts thought were decided correctly; it also prevents continuous reexamination of cases that may well now be thought wrong. Perhaps cases that long ago held that corporations were persons, or limited who may sue for antitrust damages, or others, were wrongly decided. Should the Court now reexamine them, deciding anew what is right? That approach, even were it practically possible, would reduce the law to a shambles. For without some basic legal stability, who would know what to expect or do next?

Stare decisis has not prevented the Court from occasionally overturning a case. Sometimes, because the overruled case was recent, the public had not come to rely upon it. Sometimes other related law had changed, making the overruled case a legal anomaly. Sometimes living conditions, technological conditions, or even widely held values had changed. But the crucial word here is “sometimes,” and the reasons for abandoning stare decisis must accordingly be powerful. The Dobbs majority opinion listed twenty-eight instances in which the Court had overruled a precedent. The dissent, however, considered each of those instances and explained why they involved the usual reasons for overturning a case. And almost none of the majority’s examples overruled major decisions that had been the law for nearly fifty years. Nor, so far as I or my dissenting colleagues could tell, had either the factual circumstances or the social values underlying Roe eroded since 1973, a point that distinguished Dobbs from other instances in which the Court had set stare decisis aside.

Perhaps the members of the Dobbs majority believed Roe and Casey to be, as they wrote in their opinion, “egregiously wrong.” But the fact that five members of the Court think a prior decision was wrong is normally not a reason to abandon stare decisis. Perhaps the majority took issue with the fact that Roe and Casey did not use textualist or originalist methods to interpret the Constitution. But few cases prior to the twenty-first century did. If that is a reason to abandon stare decisis, then virtually no case is safe.

Perhaps the majority felt that the two combined—wrongness in result plus wrongness in method—produced a special justification for overruling. If so, then each judge must decide if an earlier case is wrong enough to warrant abandoning stare decisis. But if that is so, then we have an even bigger problem on our hands, for that reasoning runs headlong into the primary justification for textualism and originalism: namely, that they do not allow the judge to substitute what he or she thinks is “good” for what the law demands. That is the very thing textualists say their methods avoid, and yet what else does the free-for-all over which earlier cases to overrule amount to? From what I can tell, each judge must decide how bad (in his or her subjective view) the earlier decision was—how “egregiously wrong.” Viewed in this way, Dobbs blows up a major justification for substituting textualism or originalism for traditional interpretive methods.

If Dobbs and Bruen illustrate the problems with textualism and originalism, then what would I do instead? Let me provide an example that will help explain why I believe looking to constitutional values—purposes, one might say—offers a better interpretive path.

The Bill of Rights begins with these words: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” Some believe that these provisions—called the Establishment and Free Exercise Clauses, or together the Religion Clauses—are featured prominently because the Founders were well aware of the religious wars that marred sixteenth- and seventeenth-century Europe. The generations before the Founding came to the conclusion that liberty and social stability demand religious tolerance. That tolerance requires us to respect the religious views of all citizens; it permits those citizens to worship God in their own way and to teach that way to their children. The Constitution’s Religion Clauses, the Framers believed, would help America avoid religious strife by instilling constitutional values of tolerance in the new nation. As religions in the US multiplied (and we now have dozens) and the potential for conflict rose, the Court read the Religion Clauses accordingly to adopt a principle of separation of church and state, at least where primary religious education was at issue.

But “separation” was easier said than done, and the Court’s precedents have been far from uniform. For example, it has held that a daily period of silence at public schools for meditation or prayer violated the Establishment Clause, but opening a legislature’s session with a prayer did not. State reimbursement of parents for a portion of the costs of a parochial school education violated the Establishment Clause, but paying for a deaf child’s interpreter at a parochial school did not. A law forbidding religious sacrifice of poultry violated the Free Exercise Clause, but refusing unemployment benefits to those who used peyote for religious purposes did not.

My point is that it is difficult to find subsidiary rules that help courts apply the Religion Clauses. It is less difficult, however, to return to the core purpose of the Religion Clauses: to reduce religious strife and promote harmony between people of different beliefs. Two cases from shortly after the turn of this millennium illustrate this reference to constitutional values and purpose in practice.

In the first, McCreary County v. American Civil Liberties Union of Kentucky (2005), executives of two county courthouses posted large copies of the Ten Commandments in courthouse hallways where many members of the public would see them. In response to an ACLU lawsuit, the counties adopted resolutions calling the Ten Commandments the state’s “precedent legal code.”

A majority of the Court (of which I was one) said the crucial question was whether the state had a secular purpose in creating a public display of an object whose primary purpose was religious. It concluded that the state did not: initially the Ten Commandments alone made up the display; lower courts had found that it violated the Establishment Clause, so the state officials added a few secular documents. This, the Court concluded, changed nothing; the state seemed to be looking for a way to avoid the holdings of the earlier cases (without complying). These factors, along with a few others, convinced the majority that the display was primarily religious, favoring some religions over others.

Justice Sandra Day O’Connor, agreeing with the majority, wrote that the

goal of the Clauses is clear; to carry out the Founders’ plan of preserving religious liberty to the fullest extent possible in a pluralistic society…. Our guiding principle has been James Madison’s, [namely that] the Religion…of every man must be left to the conviction and conscience of every man…. [Government] may not prefer one religion over another or promote religion over non-belief.

The “history of this particular display,” she concluded, was such that it “convey[ed] an unmistakable message of endorsement” to the reasonable observer.

The second case, Van Orden v. Perry (2005), involved a granite monument bearing the text of the Ten Commandments on the grounds of the Texas State Capitol. Was it the same as or different from McCreary? I—and a majority of the Court—thought it was different.

The question in McCreary was: Is the display being used to convey a primarily religious or a primarily secular message? The Ten Commandments are capable of conveying not only religious but also moral, historical, or cultural messages, and for those reasons they are displayed in courthouses across the country. Unlike the display in McCreary, several features of the display in Van Orden suggested such a secular message. An inscription on the monument made clear that it had been donated by the Fraternal Order of Eagles, a secular organization. It was situated in a park that contained seventeen monuments and twenty-one historical markers commemorating various people, events, and ideals related to the identity of the people of Texas. And in contrast to the McCreary tablets’ short, stormy history, the monument in Van Orden had remained in place for forty years without challenge, which suggested that few saw the monument as an effort to favor or disfavor any religion.

Indeed, one broader consideration counseled strongly against invalidating the monument in Van Orden on Establishment Clause grounds: such a ruling could have sparked disputes over long-standing depictions of the Ten Commandments on public buildings across the nation. That result, in turn, might have created the kind of religious divisiveness that the Establishment Clause sought to avoid. An originalist would likely not consider those consequences. But doing so in this case enabled the Court to advance the basic values that underlay the Religion Clauses, ensuring that a constitutional provision designed to work and to last will actually do so.

The Court today contains several members who believe that textualism and originalism provide a better way for judges to interpret statutes and constitutional phrases. Will we see a shift of interpretive paradigm, such as the one that occurred when President Franklin Roosevelt’s New Deal Court replaced the Courts of the early twentieth century that were oriented toward property and contract rights? Will these methods replace traditional interpretive methods that emphasize purpose and workability?

There are some reasons for fearing they will. The judges who favor textualism believe strongly in its value. They have used it to help decide not simply the cases I have mentioned but many others during the past few years. Yet there are also important reasons for believing that textualism and originalism will not carry the day.

For one thing, the Court has decided at least several recent cases without reliance on textualist methods. For another, new justices must adjust to the often unwritten Court rules and mores that encourage moderation over dogmatism. When the justices meet in their weekly conference to discuss cases, no one speaks twice until everyone speaks once. Lunchtime is not the time to talk about cases. Each case is a new one; if two of us strongly disagree about one, we may be the best of allies in another. These realities make it important to maintain friendly relations among colleagues, to try to see the other person’s point of view, and to compromise, where compromise is possible. Further, if I and others set forth significant criticisms of textualism or originalism, the members of the Court favoring these methods may take them into account. Finally, a focus on the workability of law is an important part of the legal world as well as our broader society, and it must go beyond pure textualism and originalism.

And that is to say nothing about public opinion. I have elsewhere explained why I continue to believe that politics has little direct influence on justices’ decisions.* The groups that urged the appointment of Justice X might have done so because they thought that Justice X saw the law in ways that would favor those groups’ political views. But the Court must speak through law, and justices must explain why their decisions are right according to law, not politics. The legal scholar Paul Freund put the relationship between law and politics on the Court this way: the Court should “never be influenced by the weather of the day but inevitably…will be influenced by the climate of the era.”

To insist upon a static, unchanging reading of legal texts can only make more difficult the task of fitting law to human life. To rely on text to the exclusion of purpose, practice, consequences, and workability will fail to account for the variety and complexity of the human experience. Truly difficult interpretive questions may have better or worse answers, but just as often there is ambiguity and indeterminacy. Trying to find “the true answer” through textualist methods, to the exclusion of all else, is a hopeless task. It is likely to drive a judge further from, not closer to, a workable and enduring interpretation. Such a judge is less likely to find in the Constitution the basic values that the Founders intended to put there. Conversely, a judge is more likely to discover what legislators meant by reading (rather than ignoring) the relevant legislative history of statutes, by considering statutory and constitutional purposes and values, and by confronting likely consequences in light of those purposes and values.

There are, of course, many different valid tools a judge might use in a difficult case. Text? Purpose? History? Tradition? Precedent? Consequences? Values? What a reasonable legislator would likely have thought? The specific tools used and the weight put upon them depend not so much on the particular judge as upon the particular case. It is judicial instinct, created and honed by experience, that will typically tell the judge which considerations to emphasize. This is not judicial mysticism. It is the same instinct that helps seasoned lawyers decide what part of a case to focus on and what to say in their briefs. It is the same instinct that helps any of us navigate a world full of ambiguity, that helps us decide whether a train fare for “animals” requires us to pay for a basket of snails. And when applied honestly and rigorously, it may well prove more constraining to judicial discretion—the sort of policymaking that opponents of the traditional method claim to abhor—than either textualism or originalism.

I believe that an understanding of how law works—including an understanding of how it can protect basic values and enable diverse communities to live together harmoniously, peacefully, and prosperously—is essential to the rule of law itself. What will happen if Americans come to believe that law does not work? That it cannot make their communities—indeed, their lives—better? Since the end of World War II, Americans, along with Western Europeans and many others, have accepted as governing principles the need to keep democracy strong, to maintain fundamental human rights, to seek basic equality, and to sustain the rule of law.

Of course, our adherence to principles of freedom, democracy, and equality has never been perfect. We have been slow at times to realize those promises for all. But I think that traditional, purpose-related methods of interpretation and the maintenance of the rule of law go hand in hand to further basic human needs. I worry about the abandonment of those methods of judging—methods that ask judges to consider Congress’s goals (not just technical rules about language), to interpret the law in light of our constitutional values, to remember that it is a workable government that our Constitution seeks.

Law is not hard science. It is a codified set of beliefs comprising the rules that all members of society must live by. They agree to abide by those rules, and that agreement cannot be taken for granted. Adopting rigid jurisprudential methods that are divorced from people’s real lives and understandings, I fear, may undermine rather than strengthen that social contract. It risks distancing law from society, creating a system of internal logic that is useful to no one, unresponsive to contemporary life, and unable to safeguard our values and shared commitments.

Read More

Stephen Breyer