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Retired SCOTUS judge slams ex-colleagues: ‘Will have a Constitution no one wants’

While the U.S. Supreme Court remains firmly in the hands of conservative justices who were appointed during Donald Trump’s presidency, a now-retired justice says in a new book and a recent interview that their “theories of constitutional and statutory interpretation” will not work out well for the country — and are doomed to fail.

Former Supreme Court Justice Stephen Breyer has written the book, “Reading the Constitution: Why I Chose Pragmatism, Not Textualism.” In it, he slams the approach of conservative justices and their methods of interpretation.

In an interview with Politico, Breyer said the American people “will have a Constitution that no one wants” if the justices in question continue their methods.

Speaking to Politico’s Ankush Khardori, Breyer, who was nominated by President Bill Clinton in 1994 and retired in 2022, said that when he wrote the book, he was not writing as a professor or an academic or scholar. “I’m writing as a practicing judge, and I’ve had a different experience than they’ve had,” he said.

“I want to show them what it is like to try to interpret words in the Constitution, words in the statutes, according to either the textualist theory, where we just look at the words, or use a more traditional method,” Breyer said.

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Later in the interview, Breyer was asked about polls that show public opinion about the court to be at an all-time low. Less than a quarter of people polled said that they trust the Supreme Court to issue a fair and nonpartisan ruling on the issue of Donald Trump’s presidential immunity regarding criminal charges that he conspired to interfere with the 2020 election.

“The most I can contribute to that — now that I have retired and I’ve thought about this — is to write this book on why these traditional methods [of interpretation] will work better. That doesn’t promise to end every problem, but I think it’s important,” Breyer said.

“I just wish that people who are not lawyers might read it. Of course, every author would like that. But read it and see how experience — not a theory at a law school — but experience has led me to think that this is an important problem in the area that you’re talking about.”

In the past, Breyer has warned against adding more seats, or “packing” the Court, but has expressed an openness to the idea of term limits for justices.

“Whether that’s a major fix is not clear to me, because the major fix — and what I mean to be driving at here — is exactly what [John] Adams and others thought, that the only way is a government by the people, etc. It is a government of democracy and protection of human rights and so forth. Will it work? We are an experiment.”

Even though the country has “been through a lot,” Breyer says “people in this country are pretty good at getting their act together and helping each other.”

“And we saw that up in Cambridge during Covid, when groups got together to see if old people had enough to eat and if they were all right. And that happened, not just in Cambridge, but all over the country.”

Read the full interview over at Politico.

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