Louis Menand reviews “Reading the Constitution: Why I Chose Pragmatism, Not Textualism,” the new book by the former Justice, which touches on issues including abortion, gun laws, and gay marriage.
The vetting went well enough, and Breyer was invited to Washington to meet the President, Bill Clinton. Breyer’s doctors advised against flying, so he took the train, in some discomfort. The meeting with Clinton did not go well. According to Jeffrey Toobin’s “The Nine,” a book about the Supreme Court, Clinton found Breyer “heartless.” “I don’t see enough humanity,” he complained. “I want a judge with soul.” Breyer was told to go home. They would call. He knew that things had gone poorly.
In his concurrence, Thomas suggested that the Court might want to reconsider Griswold and Obergefell. What happened? Breyer has an explanation, and he lays it out in the new book. He thinks it’s all a matter of interpretation. As Breyer points out, a majority of the Court now subscribes to the interpretive methods known as textualism and originalism. Textualism and originalism tend to be run together as types of what used to be called “strict construction” . But there is a difference.
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