News bit: Breyer critiques the USSC

A NYT article, Justice Breyer, Off the Bench, Sounds an Alarm Over the Supreme Court’s Direction, includes these comments:

“Something important is going on,” he said. The court has taken a wrong turn, he said, and it is not too late to turn back.

The book, “Reading the Constitution: Why I Chose Pragmatism, Not Textualism,” will be published on March 26, the day the Supreme Court hears its next major abortion case, on access to pills used to terminate pregnancies.

Textualism is a way of interpreting statutes that focuses on their words, leading to decisions that turn on grammar and punctuation. Originalism seeks to interpret the Constitution as it was understood at the time it was adopted, even though, Justice Breyer said in the interview, “half the country wasn’t represented in the political process that led to the document.”

There are three large problems with originalism, he wrote in the book.

“First, it requires judges to be historians — a role for which they may not be qualified — constantly searching historical sources for the ‘answer’ where there often isn’t one there,” he wrote. “Second, it leaves no room for judges to consider the practical consequences of the constitutional rules they propound. And third, it does not take into account the ways in which our values as a society evolve over time as we learn from the mistakes of our past.”

Justice Breyer did not accuse the justices who use those methods of being political in the partisan sense or of acting in bad faith. But he said their approach represented an abdication of the judicial role, one in which they ought to consider a problem from every angle.

The weakness inherent in Breyer’s democratic mindset is painfully obvious in the last quoted paragraph. His logic is flawed. Specifically, it is now clear that what he calls an abdication of the judicial role, is blatantly partisan. The decisions of the six radical authoritarians make that undeniable. They are not principled decisions. They are goal-driven. Breyer still cannot see the authoritarian threat. He just does not get it.

Interestingly, Breyer’s comment that originalism not take into account the ways in which social values evolve invokes American Legal Realism (ALR). Once I became aware of ALR, my understanding of why radical right authoritarianism had to come up with crackpot legal theories like originalism and textualism. Simply put, those crackpot theories are far more compatible with outcome-driven authoritarianism than with democracy in complex modern societies.