For the Review’s May 23 issue, former Supreme Court justice Stephen Breyer makes the case against textualism and originalism as legal philosophies:

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.

Below, alongside Breyer’s essay, we have compiled a selection from the archives about the Supreme Court and judicial philosophy.

Stephen Breyer
Choosing Pragmatism Over Textualism

A method of judicial interpretation that looks only to the original meaning of legal texts risks producing a Constitution and laws that no one would want.

Linda Greenhouse
The First and Last of Her Kind

“The legal academy has tended to be dismissive of Sandra Day O’Connor, arguing that she had no overarching theory of constitutional interpretation, and that her instinct for compromise led her to write opinions that were too closely tied to the facts of the specific case under review, leaving unclear the doctrinal implications for the inevitable next case. But the Supreme Court is not, after all, a law school faculty workshop. O’Connor saw herself as a problem-solver.”

Jed S. Rakoff
Hail to the Chief

“John Marshall, while hugely instrumental in assuring for the federal judiciary its limited supervisory role over the legislative branch, exhibited a subservience to the executive branch that continues to haunt us.”

John Paul Stevens
Law Without History?

How Justice Scalia’s understanding of the Constitution is wrong

Anthony Lewis
How the Supreme Court Should and Should Not Work

“Of course it does not solve all the riddles of constitutional interpretation to say that a judge should attend to the basic values underlying the words he or she is interpreting. Breyer has much more to say about how the judge should proceed—without relying exclusively on rhetoric, for example, and with care for the responsibilities of the other participants in our governmental system. He brings his principles to life by examining some notable cases in the Supreme Court’s history—ones where the Court failed.”

Ronald Dworkin
The Moral Reading of the Constitution

“There is a particular way of reading and enforcing a political constitution, which I call the moral reading. Most contemporary constitutions declare individual rights against the government in very broad and abstract language, like the First Amendment of the United States Constitution, which provides that Congress shall make no law abridging “the freedom of speech.” The moral reading proposes that we all—judges, lawyers, citizens—interpret and apply these abstract clauses on the understanding that they invoke moral principles about political decency and justice.”

Thomas C. Grey
Bad Man from Olympus

“Oliver Wendell Holmes argued that law should be conceived as a means to the attainment of human ends, that tradition and precedent should be subject to scrutiny and revision, and that judges should admit that they decide debatable cases on the basis of policy, not of precedent or abstract principle.”

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