Stephen Breyer’s latest 2024 book, Reading the Constitution: Why I Chose Pragmatism, Not Textualism, suggests that he has somewhat shifted toward an approach more closely aligned with Richard Posner’s concept of legal pragmatism. In the book, Breyer argues that textualism alone does not produce sound legal decisions. He explains, for example, that not all cases allow a judge to simply rely on dictionaries for legal solutions. To use a famous example, the phrase “No Vehicles allowed in the Park” would, under a strict textualist interpretation, prohibit ambulances from entering the park to provide care to joggers. Instead, Breyer argues that we must consider the underlying purpose behind the statute. What was the statute intended to achieve? Only when we know the underlying purpose of a statute, according to Breyer, can judges properly interpret statutes in difficult cases.
In addition, according to Breyer, we should also ask how a reasonable legislator would have approached the case in question. To determine this, we can look at factors such as legislative history, the text itself, and even dictionaries, but always with the purpose of the statute in mind. Breyer emphasizes that the purpose of the words matters in both statutory and constitutional interpretation. Textualism, which relies primarily on dictionaries, and originalism, which focuses mainly on how people at the time understood the text at issue, do not always provide adequate answers in challenging cases. Much of Breyer’s book can be seen as a direct response to Justice Scalia’s version of originalism, despite Justice Scalia having passed away in 2016.
While Breyer’s arguments seem in some sense reasonable, it appears that he has somewhat adopted elements of Richard Posner’s version of legal pragmatism without expressly acknowledging this shift in his thinking. In Breyer’s 2005 book, Active Liberty, Breyer introduced the concept of “Active Liberty” as a guiding principle for interpretation, arguing that legal interpretations that promote a more democratic society are preferable. In Active Liberty, Breyer distinguishes between “Liberty of the Ancients” and “Liberty of the Moderns.” It was this distinction in varying conceptions of liberty that guided Breyer’s theory of legal interpretation. However, in Chapter 11 of Richard Posner’s 2008 book How Judges Think, Posner strongly criticized Breyer’s “active liberty” method and Breyer’s attempt to distinguish different conceptions of liberty. However, in Breyer’s latest book, Breyer now seems to focus on purposes, consequences, intent, and other factors in addition to the words themselves, similar to Posner’s theory of interpretation. This change in Breyer’s thinking parallels Posner’s own debate between legal pragmatism and legal realism.
In his 2008 book How Judges Think, Posner also outlines various methods of judicial interpretation, with an emphasis on the debate between legal pragmatism and legal realism. Posner advocates for essentially a consequentialist approach to legal interpretation, often framing it as legal pragmatism. Posner argues that judges should examine the purpose of a statute (or a clause in the Constitution, or a clause in a contract, etc.) and ask what the intended goal of the language was. One way to determine this purpose is to evaluate the consequences of different interpretations. If a particular interpretation leads to bizarre or impractical outcomes—or, as Posner phrases in his earlier works, “economic inefficiencies”—this suggests that such an interpretation was not the intended one. By considering the pragmatic consequences of various interpretations, Posner argues that judges can arrive at better legal outcomes.
In Breyer’s latest explanation of his theory of legal interpretation, it seems that Breyer somewhat simply adopts Posner’s arguments and discards his previous “active liberty” framework, without expressly acknowledging that this is what he is doing.