"I was frightened to death for the first three years," he said in a recent conversation....Maybe you think those expressions of timorousness are a bit of a pose, but I'm inclined to take him at his word here. It rings true. Don't you think that's how you would feel if you had this responsibility? Or would you get a charge out of the sheer power?
He had felt adequately prepared and had expected to move comfortably into his new role, he said, and was therefore surprised at how overwhelming he found it.
"I was afraid I might inadvertently write something harmful," Justice Breyer said. "People read every word. Everything you do is important. There is a seriousness to every word, and you really can't go back. Precedent doesn't absolutely limit you. In almost every case, you're in a wide-open area. The breadth of that opening, getting up to speed on each case, constitutional law as a steady diet, the importance to the profession. ..." His voice trailed off, and he shook his head. "My goodness!" he exclaimed.
Here's his explanation for writing his book "Active Liberty: Interpreting Our Democratic Constitution":
"An approach is not a theory," he said. "And it's not ad hoc. It's somewhere in the middle. It's consistency. I wanted to know, Am I being arbitrary? What is the check? After a while, a judge begins to leave footprints. Writing the book, the doing of it, forced me to work through and find the coherence."Only a certain type of mind thinks about constitutional interpretation that way. You might think that a Justice needs to commit to a theory of interpretation beforehand, try to follow it, and then judge his work by whether he played it straight as he applied the theory in the particular cases. Breyer is looking at the accumulated work over the years and discerning the pattern of his behavior, creating an argument for why it is coherent. This approach, by the way, is one you might use to write a scholarly article about the Court: you look at a set of cases and discern a theory that explains them. Is it odd for a Justice to do that with his own work? Perhaps we need to say that a Justice who operates in this manner, only discerning his theory in retrospect, really does have a theory from the outset: the theory is pragmatism.