Writes the NYT nonfiction book critic Jennifer Szalai, in "The Retired Justice Who Doesn’t Understand the Supreme Court/Stephen Breyer means well. Why is his new book, 'Reading the Constitution,'' so exasperating?"
Reasons why I'm not making an Amazon link for the book:
Reasons why I'm not making an Amazon link for the book:
1. It takes some time to go to Amazon, find the book, copy a link, paste the link, and then add something like "commission earned" because I think it's somehow required or might be.
2. If you want to buy it and in the process channel a commission to me, you can put the book title in the Amazon search box that's always in the sidebar (and thanks if you do).
3. I don't believe any of you want to read "Reading the Constitution: Why I Chose Pragmatism, Not Textualism" by Stephen Breyer. And it costs $32. If it doesn't sound like something you've heard a hundred times before, how could you possibly be someone who would read a book in this category? (This is me being pragmatic.)
I could write a book called "Not Reading Books: Pragmatism, Not Textualism." I could, but it wouldn't be pragmatic. I'll refrain from offering answers to the question, if Breyer is so pragmatic, why is he writing this book? You know the 2-part answer, and I don't want to be rude.
From the comments at the NYT: "I will buy this book, if only to support him because he did the right thing for our country by retiring when he did. Unlike Ruth Bader Ginsburg, he unselfishly listened to reason and reality when asked to do so. Thank you Sir." See? They're not going to read the book.
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55 comments:
asking plaintively how anyone could ever want 'a world in which no governmental effort is made to cure environmental, medical or safety-related ills?'"
i certainly Could want that.. i DO want that..
want to read a HORROR STORY?
I'm From the Government, and I'm Here to help
The reason to adopt textualism is if you're not good at making judgments about system stability and would otherwise go with feelings.
The founding fathers were structure guys; the dems are feelings guys, so all you get is perverse consequences as the structure fails.
In that case, go with the structure guys. Textualism and originalism.
He has nothing to say that warrants a book. The left has used an ends-justifies-the-means "pragmatic" strategy on the SC since FDR tried to pack the court back in the 1930s. In turn, this led to structured right-wing reaction against overtly unconstitutional laws among those who believe in the rule of law. Tit-for-tat. Trench warfare. We all know this.
Celebrity books today are transparent donation/enrichment schemes. Few people read them, but some donors buy them in bulk...I guess they are fuel for bonfires or insulation for homeless shelters? Sometimes celebrity book schemes are legal and sometimes they are not. Per my reply to Baltimore comments yesterday:
https://www.npr.org/2023/07/11/1187005372/sonia-sotomayor-supreme-court-staff-book-sales-signings-memoir
https://www.npr.org/2019/11/21/781787102/former-baltimore-mayor-pleads-guilty-in-childrens-book-scandal
By rejecting “textualism”, Breyer reinforces my negative opinion that the Constitution only means what the supreme court says it means, actual text notwithstanding. People who reject the actual text are those who believe in a “living Constitution” that can be folded, spindled, mutilated, or ignored to justify rulings for what they want. If they want something that the Constitution doesn’t allow, all they need is a favorable court ruling. This avoids the effort and time required to amend the Constitution and effectively renders it meaningless.
asking plaintively how anyone could ever want 'a world in which no governmental effort is made to cure environmental, medical or safety-related ills?'
There's a word for thinking like this.
Good call Ann. Besides, we have MSNBC for the "feelings" take on cases.
“At his most baffled, he starts firing off strings of rhetorical questions, asking plaintively how anyone could ever want 'a world in which no governmental effort is made to cure environmental, medical or safety-related ills?”
You mean, like a governmental effort at censorship to cure vaccine hesitancy, or to cure people thinking the wrong things?
No one, I mean no one, should think the government exists to cure anything. That is not in any part of the US Constitution.
"...if Breyer is so pragmatic, why is he writing this book? You know the 2-part answer, and I don't want to be rude."
Ann, you're a treasure!
I'm almost two years into my "retirement" and I still battle my desire to critique my successor's actions and performance every day.
I do wish these retired politicians and judges were more successful in that battle - or were even cognizant of that need.
At his most baffled, he starts firing off strings of rhetorical questions, asking plaintively how anyone could ever want 'a world in which no governmental effort is made to cure environmental, medical or safety-related ills?'"
So what you're saying is...even after all those years on the court, Breyer still has no clue what the role of the court is.
"He keeps repeating the argument that 'purpose-related tools' can make 'our democracy more workable.'"
It's a nice-sounding completely meaningless phrase. The perfect Stephen Breyer mantra.
“Our democracy”
Key emphasis on “our”.
Unlike Ruth Bader Ginsburg, he unselfishly listened to reaso
In other words, "we like him more than we like Ginsburg because he is more a partisan political animal than Ginsburg." Which is no mean feat considering how politically driven she was, but she was a narcissist above all else whereas Breyer, apparently, is a good liberal foot soldier above all else.
Good for you professor. In the end all these Justices are merely lawyers whose opinions and findings are only correct until they're not and some future date. Breyers's decision to leak a major ruling before it was official doesn't hold up very well either. "Pragmatism" here being whatever he happens to prefer as an outcome.
One person's ability to be "flummoxed by the Supreme Court’s right-wing turn" is another person's "the court only deciding cases based on what is actually in the Constitution vs what they 'feel' should be in the Constitution"...
“Well,” I say, “how would you know and what would it matter anyway?”
Gov't is free to address any "problem" so long as they do it in a constitutional manner. If the constitution doesn't give the government the power to address the "problem" adequately then it can't address it or there is a process to amend the constitution. Constitutional law should not be hard. It would be even simpler if the default position was "no the government can't do that" unless the government can point to explicit text in the constitution allowing them to do it. The government should get almost no deference.
"asking plaintively how anyone could ever want 'a world in which no governmental effort is made to cure environmental, medical or safety-related ills?'"
I know being prog means being oblivious to the most obvious counterarguments, but for a smart guy like SB to spout the BS is stil a little jarring.
"Writes the NYT nonfiction book critic"
Nonfiction?
"The Retired Justice Who Doesn’t Understand the Supreme Court"
Wait, the NYT discovers that purpose-driven judicial activism is actually not the job of SCOTUS?
"I don't believe any of you want to read "Reading the Constitution: Why I Chose Pragmatism, Not Textualism"
Depends on the meaning of want. But I think I will. It'll be fun to see how he massages the non-textualist "reading."
"They're not going to read the book."
They don't need to. Just as they don't need to read the Constitution. Progs already know what anyone could ever want.
"how anyone could ever want 'a world in which no governmental effort is made to cure environmental, medical or safety-related ills"
I do want a government that makes the effort. I want it done through my elected representatives, which includes representatives from Podunk, Kansas and Peoria, Illinois, and not through a small group of Harvard and Yale law grads with lifetime tenure and universal praise by the upper class in the Northeast.
Did this Breyer guy ever even read the Constitution?
The road to social hell is paved with pragmatism.
The founding fathers were structure guys; the dems are feelings guys, so all you get is perverse consequences as the structure fails.
This is important for each individual to come to grips with.
Which is more important? Proccess(structure), or, Results?
Think of our criminal system. It demands the accused is innocent. It demands the accused has all the structural advantages, and all the burdens are on the State.
Colloquially. It is better 100 guilty go free, than a single innocent person is found guilty.
My humble opinion, the process is infinitely more important than the result.
Beyer shit cans the important part because he is so much smarter than the founders.
If the result does not suit you, how are you going to change the process? At what cost?
Congress can overrule most SCOTUS decisions. LOTS of SCOTUS decisions could have been settled by congress. Abortion? 45 years ago, congress could have written an abortion law regulating abortions. But Dems wanted the conflict. The conflict was electoral gold to the Dems. Dems being short sighted refused to consider Roe would ever fall. They failed to understand the process, preferring to live in a result they believed overruled the text of the Constitution. 'those powers not enumerated belong to the States, or People'.
Now that Breyer has been outed as the source of the leak of the opinion that ended Roe v Wade, I not only despise him for his knee-jerk liberal decisions, but also for his duplicitous attempt to undermine the court's decision. And when was the last time that a supreme court justice went on a late-night talk show, as Breyer recently did? The trend among democrat justices only got worse when Ketanji Brown Jackson, who apparently is frustrated at how the first amendment 'hamstrings' the government, was selected to replace Breyer.
It is interesting reading how dismissive progressives are of human beings. It matters not what Ginsburg did over her life. It only matters that she didn't leave at the right time.
It will be the same for Biden and Harris. They are just "purpose related tools".
Liberals/leftists believe that, if just the right policies are applied by just the right people, every problem afflicting humankind can be fixed.
Some things can not be fixed, by any person under any circumstances.
A lot of things can be broken by attempting to fix things that cannot be fixed.
The democratic processes and republican structures envisioned by the Founders and implemented over two centuries of experience work just fine, thank you very much. The fact that people get upset over the results is not evidence they don't, and they are in fact designed to deal with that upset.
He's a tool all right.
This confirms that he was not qualified by temperament to sit on the Supreme Court. Astounding that he is so clueless. James Madison spins in his grave.
If a retired law professor doesn't have even the mildest interest in reading the book, I wonder who his target audience is? He's a retired Justice. I don't think any corporation or special interest will buy a shitload of his books in order to curry favor. On the other hand, the book is reviewed in the NYT and that review of the book is reviewed on the Althouse blog, so that's something. I'm sure that there are some out there who want to read the musings of a retired Supreme Court Justice, but their numbers are probably less than those of transgendered people who want to buy beer. If he wanted to sell some copies, he'd dish some dirt on his former colleagues, but apparently he didn't do that. This book is a proton in the zeitgeist, which is more than most books, but it's nothing beyond that.
I can't say that I've ever read a book by a retired Supreme Court Justice. Once in a used book store, I did pick up a memoir written by Earl Warren. I read that part of the book where he defended his actions in the round-up of Japanese-Americans during WWII. Some of the reasons he gave were quite compelling. He needn't have worried though. The round up will be blamed on racist Americans not on liberal icons like Warren or FDR.
The word "pragmatism" is the go-to for superannuated judges who are unable to bring themselves to say "I can't figure this out, so I'll just do whatever I feel like doing." See Posner, R.
Esteban said "The government should get almost no deference." and West TX Intermediate Crude said "Liberals/leftists believe that, if just the right policies are applied by just the right people, every problem afflicting humankind can be fixed.
Some things can not be fixed, by any person under any circumstances.
A lot of things can be broken by attempting to fix things that cannot be fixed.
Both gentlemen are correct. The courts giving deference to the government instead of treating it as a collection of power hungry corrupt con men is one of the bigger problems we face as a country.
When lefty judges, like Blackmun (of 410 US 113 fame), Breyer, his AA replacement (Ketanji), the Latina, Wm Douglas, and others, read the Constitution, they always choose the version written with invisible ink.
Which is only decipherable by them.
I haven't read the comments so I'm probably just repeating what everyone else has said. But its needs repeating.
Beyer is a leftist who used the SCOTUS to impose his leftwing views on the USA. At one point, he and Ginsberg (Maybe O'Connor and Kennedy too) were quoting foreign courts to justify their opinion and called out by Reqnuist and Scalia.
To misquote Scalia - Beyer's opinions were "unteathered to the constitution". Personally, i dont see a reason to have a group of 9 lawyers as Philospher Kings ruling America. If they aren't going to follow the constitution, get rid of the SCOTUS!
Althouse said,
"I could write a book called "Not Reading Books: Pragmatism, Not Textualism." I could, but it wouldn't be pragmatic. I'll refrain from offering answers to the question, if Breyer is so pragmatic, why is he writing this book? You know the 2-part answer, and I don't want to be rude."
I got a huge laugh out of that. Thank you.
The burden of the Supreme Court is that if a Justice is not a big personality, he's going to seem like a bumbler. Breyer is not a big personality.
At his most baffled, he starts firing off strings of rhetorical questions, asking plaintively how anyone could ever want 'a world in which no governmental effort is made to cure environmental, medical or safety-related ills?'"
1: Doing that is not the job of unelected and unaccountable members of SCOTUS
2: Doing that is usually a job left by the written US Constitution to the State governments, NOT to the Feds
3: There's this amazing concept call a "Constitutional Amendment". If "We the People" think the written US Constitution is preventing the US Federal Gov't from doing something that needs to be done, then We the People will see to it that a Constitutional Amendment gets passed to fix that problem.
If you the Left wing scumbags thing there's a problem, but We the People do not, then it is right and proper that the Federal gov't continue to be bound by the written US Constitution.
It is vile, monstrous, and evil for you unelected, unaccountable, ignorant, and moronic left wing "justices" to force your preferred desires on the rest of us
"At his most baffled, he starts firing off strings of rhetorical questions, asking plaintively how anyone could ever want 'a world in which no governmental effort is made to cure environmental, medical or safety-related ills?'"
Only an Intellectual/Certified Expert could be such a fucking idiot.
The wealth and status of academia needs to be reduced to as near zero as possible.
Well, I'm sure as shootin' that with the proper elite, mostly just like him, in charge of the rest of us people, things will go just fine with his ideal ordering of the way things should work, and we can let reality be damned!
People who think like him were the reason for establishment of a limited government in the first place.
Stenberg v. Carhart is arguably the worst Supreme Court opinion ever written. And Breyer wrote it. It's the opinion that turned me into a pro-lifer, almost over night. I used to say shit like, "I'm pro-life and pro-choice." Trying to be a moderate, you know. And then I read that baby decapitating opinion, and it was frankly embarrassing to say anything other than, "I'm pro-life."
Think about it from a principled perspective. Roe v. Wade overturned a bunch of Texas statutes. Specifically, articles 1191-1194, and 1196. Why did they skip over article 1195? Because that was the criminal statute that made it a crime to kill a baby in the middle of birth. (See footnote 1). Punishable by life in prison.
So, 27 years later, seemingly without even realizing it, the Supreme Court expanded abortion rights to include partial-birth abortion. That's a "surgery" that many people -- not just Republicans -- feel is akin to murder. Hence the life in prison for people who do that.
Breyer was oblivious. His opinion goes into graphic detail about infanticide techniques. He included risible statements like "a free-floating fetal head is difficult to grasp and remove." Kennedy's dissent is on fire, of course. But Breyer's graphic baby-killing opinion is bad enough, on its own.
Now throw principles out the window, and just think pragmatically. It's insane to insist on a "right" to abort pregnancies up until birth. Nobody in Europe does that. Democrats don't believe in partial-birth abortion. Only unelected people in Communists countries push infanticide that far. You can't run for office on that agenda. Unless you have a Pravda media always willing to look the other way, of course.
Worse, Breyer lost Kennedy, who voted to uphold Roe in Casey. He willingly burned that bridge. I guess on an assumption that the right would never control the Supreme Court again.
Carhart was the low water mark in abortion jurisprudence. It was overruled seven years later, a vote that was utterly predictable. And, arguably, the homicides described in Breyer's notorious opinion gave five Justices the stones to overrule Roe itself in 2022.
Carhart, the opinion so notorious that law professors skip right over it, galvanized the right. I think maybe it was the infanticides that gave McConnell the cojones to keep Garland off the Court. And Trump -- who is no pro-lifer -- felt the need to promise to put only pro-lifers on the Court. And he did.
Breyer's awful opinion was a step too far. And overruling that one opinion wasn't enough. After all, in Carhart Breyer spent many pages explaining why D&E abortions are so dangerous to women. That's why doctors had to induce birth to kill babies. So all reversing Carhart did was reinstate the dangerous status quo. Breyer gave us a whole laundry list of bad things that can happen in a D&E abortion. Namely, baby parts left behind in the uterus. After Carhart II, the Supreme Court was in the weird position of saying the dangerous D&E procedure was once again required by the U.S. Constitution.
Unlike Ruth Bader Ginsburg, he unselfishly listened to reason...
Ginsburg's concurrence, like O'Connor's, is a sweet feminist ode to abortion rights jurisprudence. Talk about the rights of women and avoid the bloody details. Duh! Breyer blunders into feminist waters, hacking and stabbing and trying to grab that baby's head so he can rip it off. Liberals who are crying about the "loss" of Roe v. Wade ought to contemplate the absolutist (and barbaric) rule-making in Stenberg v. Carhart.
The reason to adopt textualism is if you're not good at making judgments about system stability and would otherwise go with feelings.
The reason to adopt textualism is that high-functioning sociopaths are dangerous and should not make up rules as they go.
"Liberals/leftists believe that, if just the right policies are applied by just the right people, every problem afflicting humankind can be fixed."
Not only that, they believe they are the only ones who know what "fixed" means. Doesn't matter how many people are harmed by implementing their ideas as long as they get the solution that makes them happy.
Breyer wasn't qualified to be a Supreme Court Justice. His appointment was political, and his opinions veered from the mandates of the Constitution.
It's easy to see how a book reviewer for the NYT better "understands" the SCOTUS than a retired Justice with many years of service.
I'm not going behind the paywall. Looking at the headline, despite Breyer's failings, I'm appalled by the reviewer's arrogance.
Uses for government:
Roads and highways.
Water, power, sewer, etc.
Military and borders.
Ensure free flow of commerce.
Law enforcement of actual crimes.
That's about it. Everything else can be done by private companies competing for your business.
I probably missed a couple, but I think the Founding Fathers' vision of American was closer to the above than to that of a typical democrat.
I could write a book called "Not Reading Books: Pragmatism, Not Textualism."
I laughed out loud at this line.
So, we had, as a Supreme Court Justice, a guy from the CHAS/CHOP. Who knew???
If anyone has an hour to spend on it, back in 2009 at the University of Arizona, Scalia and Breyer had a discussion where they offered up their different viewpoints of how to interpret the constitution. Scalia and Breyer. For some reason this video starts half-way through for me, so you may need to start from the beginning.
Love his ice cream!
Breyer was the ultimate technocrat, believing in the rule by so-called experts. He loved him some administrative agency bureaucracy. The DC credentialed class sees their influence wane if Breyer and his ilk are swept aside.
Breyer has always been jealous of Scalia, who, unlike Breyer, was a true intellectual heavyweight on the court. Breyer's "pragmatism", or whatever he's calling it these days, was just his way to do what leftists judges have always done: reach as far up their asses as possible and decide that whatever they pull out must justify giving the left what it wants. That's no way to decide cases, though always tempting for all judges who forget that they are supposed to decide what the law says, not what they want it say.
"Purpose-related tools?" Does he mean like a philips head screw driver? Whenever I need one, I just pick it up and use it, without considering that I am making democracy more workable. Same when I was giving legal advice on the applicability of the Establishment Clause to a State providing financing to a parochial school. My legal toolkit didn't include one of those penumbra finders, so I was limited to hanging my opinion on the visible text and cases interpreting it.
"'a world in which no governmental effort is made to cure environmental, medical or safety-related ills?'"
It's the effort that counts, right?
After noticing the inner quotes (after incorrectly assuming it was a bullshit paraphrase) I was skeptical that the quote was accurate or in context. The quote appears in google only 3 times. The original article, this Althouse post and google books.
The context (starting at bottom of p 171) is regarding regulatory "Agency expertise" and those who doubt that expertise. He goes on to say "But we should ask: Compared to what?"
Good question! The context makes the quote more reasonable. However, that pragmatism is almost by definition just pulling ideas out of a hat. It's also close to defeating the purpose of having a constitution.
Also...
In the quote from the article ..."how anyone could ever want 'a world in which no governmental effort is made to cure environmental, medical or safety-related ills?'"
"how anyone could ever want" is outside of the inner quotes. That's not Bryer saying that and I don't think that's a fair paraphrase unless there's more that follows that would give that impression.
Professor, if you link Jesse Watters new book, whatever it’s called, I’ll buy it. Wasn’t going to but I’ll throw $25-$30 at Amazon for you and just might read bits of it. Sounds like the folks he interviewed are batshit crazy so good, at least, to know the nut case liberal types to avoid. Which is pretty much all of them at this point.
Just a couple more years, Lord! And I can retire to the farm in Athens, TX, with my guns, religion and whatever else I need to take with me.
" 45 years ago, congress could have written an abortion law regulating abortions"
The hell they could have.
Interesting topic. 353 books are attributed to SC Justices, including poetry (The Power of Solitude, a Poem in Two Parts). William Orville Douglas was prolific, writing about mountains, Tibet, and psychiatry -- 51 books total.
I've only read one, Clarence Thomas' book about why blacks should consider conservatism. But I'm definitely going to look at William Howard Taft's The Dawn of World Peace, unfortunately published in 1911. And weirdly, I just bought Salmon Portland Chase's History of Ohio in a Goodwill. I don't know why.
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