{"id":125655,"date":"2025-07-06T16:33:29","date_gmt":"2025-07-07T00:33:29","guid":{"rendered":"https:\/\/xira.com\/p\/2025\/07\/06\/justice-breyer-dismantles-originalism-like-it-deserves-respect-it-doesnt\/"},"modified":"2025-07-06T16:33:29","modified_gmt":"2025-07-07T00:33:29","slug":"justice-breyer-dismantles-originalism-like-it-deserves-respect-it-doesnt","status":"publish","type":"post","link":"https:\/\/xira.com\/p\/2025\/07\/06\/justice-breyer-dismantles-originalism-like-it-deserves-respect-it-doesnt\/","title":{"rendered":"Justice Breyer Dismantles Originalism Like It Deserves Respect. It Doesn\u2019t."},"content":{"rendered":"
\"\"
(Photo by Bill O\u2019Leary\/The Washington Post via Getty Images)<\/figcaption><\/figure>\n

Justice Stephen Breyer may no longer sit on the Supreme Court, but he still has thoughts about his old workplace. Tomorrow, Open to Debate<\/a> is dropping a wide-ranging interview with Breyer covering everything from his personal account of the day he was nominated to the Supreme Court to the mechanics of the conversations justices have. <\/p>\n

He also gives his secret strategy for making sure he\u2019d get assigned an opinion with just three little words.<\/p>\n

However, a good deal of the conversation explores themes from his latest book Reading the Constitution: Why I Chose Pragmatism Not Textualism<\/em>. Breyer\u2019s book and the related discussion provide a frustrating take on judicial philosophy. Not because the justice fails to lay out intellectual case against either textualism or originalism, but because he addresses them with the respect they have done nothing to deserve. <\/p>\n

There\u2019s nobility in raising the level of discourse through professional and respectful engagement. But it\u2019s also the kind of nobility that gets offed in the first season of Game of Thrones.<\/p>\n

It\u2019s a matter of victory conditions. Textualists don\u2019t care about convincing everybody, they just need their trash ideas treated \u201cfairly\u201d by respected people so they can pawn off their worldview as reasonable disagreement. Defenestration via Overton Window.<\/p>\n

Efforts to unilaterally elevate the conversation miss the mark because they fail to grasp this victory condition issue. The conservative legal movement doesn\u2019t care that you can respectfully poke holes in their chosen interpretive philosophy \u2014 they more or less know it sucks \u2014 they just want it treated with unearned dignity on the public stage so they can trade on the patina of credibility that affords.<\/p>\n

The Open to Debate crew notes that they recorded a prior debate titled \u201cShould SCOTUS, the Supreme Court, focus on the original meaning of the Constitution?\u201d and I know that because I was on that one!<\/a> I recall Professor Randy Barnett laid out \u201cfive normative arguments\u201d for originalism and I was allowed to ask a question at the end prompting him to concede his \u201cnumber one\u201d argument. If only I\u2019d been able to ask more questions, we could\u2019ve knocked them all out! But the point is even the defender of originalism was willing, when pressed, to admit he wasn\u2019t even persuaded by the top argument he presented. It\u2019s just throwing pasta on the wall and hoping the other side is polite about it.<\/p>\n

This doesn\u2019t mean forfeiting critique or descending into Twitter-thread invective. Refusing to engage is its own vice. But tone matters. If the argument registers as polite disagreement rather than scathing teardown, textualists can declare mission accomplished.<\/p>\n

If there\u2019s a quote from the discussion that captures this disconnect, it\u2019s this one:<\/p>\n

\n

So if you, you say to the textualists, what, uh, \u201cDo you agree with Brown versus Board of Education?\u201d They say, \u201cYes, of course.\u201d\u00a0<\/p>\n<\/blockquote>\n

Ahem.<\/p>\n

\"\"
<\/figcaption><\/figure>\n

This isn\u2019t hyperbole. During the first Trump administration, Democrats took to asking his judicial nominees if they would at the very least agree that Brown v. Board<\/em> was correct and they\u2026 struggled mightily<\/a>. They weren\u2019t being asked if Brown<\/em> required a return of bussing or anything, just if \u2014 on its own facts \u2014 they agreed with the unanimous Supreme Court opinion against Jim Crow education. Koosh balls aren\u2019t even that soft. And yet it caused much hemming and hawing among Trump\u2019s nominees. Indeed, the counsel shepherding GOP nominees through the Judiciary Committee at the time threw a tantrum that it was unfair \u201cgutter politics\u201d to make nominees defend desegregation while under oath<\/a>. <\/p>\n

So when Justice Breyer grants the champions of textualism and originalism the benefit of the doubt that they would \u201cof course\u201d say they support Brown<\/em>, he doesn\u2019t grasp the conservative legal movement\u2019s YOLO era where they\u2019ve stopped pretending and just raw dog judicial review. There are certainly still originalist wizards willing to offer lip service to Brown<\/em> ending de jure<\/em> segregation while playing semantic games to guarantee de facto<\/em> segregation, but for a lot of them the hood is now off. Or on as the case may be.<\/p>\n

Either way, it renders this academic sparring session with textualism a naive exercise. He\u2019s saying they would say \u201cof course\u201d as if these folks have some good faith belief in Brown<\/em>, when recent events make pretty clear the movement only ever said \u201cof course\u201d to further the con that their philosophy had any depth to it.<\/p>\n

The whole approach feels like chiding Orval Faubus that his articulation of states\u2019 rights misreads the Federalist Papers. As the ubiquitous goose meme would ask, \u201cA STATE\u2019S RIGHT TO DO WHAT?!?<\/a>\u201d The point forcefully expressed by our feathered friend is that the philosophy is inextricable from its purpose. That\u2019s the nut that an academic conversation about this stuff can\u2019t get at: originalism\u2019s whole appeal is that constitutional law was better in the 1700s. \u201cFor who?\u201d the goose might ask. Which is wrong because it should be \u201cfor whom\u201d but geese are terrible at grammar. But when someone decides they\u2019re an originalist, you can\u2019t haggle with them over finer points of workability \u2014 valid though those points may be \u2014 because they\u2019re in it for the value it represents. They\u2019re in it because they actually believe in a backward-looking world. Tear down originalism from the ivory towers and they\u2019ll just invent a new mechanism to get there.<\/p>\n

Which is all to say the conversation is interesting but incomplete. Until someone in Breyer\u2019s position delivers their sharp argument without conceding the textualist\/originalist covert demand for respectability, these discussions do little to derail the steady advance of a jurisprudence of witch-hunters<\/a>.<\/p>\n

The episode is out tomorrow and covers this and much more. Check it out here:<\/p>\n

7\/4:\u00a0Thinking Twice: Reading the Constitution with Justice Stephen G.\u00a0Breyer<\/a> [Open to Debate]<\/p>\n

\n

\"Headshot\"Joe Patrice<\/a>\u00a0is a senior editor at Above the Law and co-host of Thinking Like A Lawyer<\/a>. Feel free to\u00a0email<\/a> any tips, questions, or comments. Follow him on\u00a0Twitter<\/a>\u00a0or Bluesky<\/a> if you\u2019re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search<\/a>.<\/em><\/strong><\/p>\n

The post Justice Breyer Dismantles Originalism Like It Deserves Respect. It Doesn\u2019t.<\/a> appeared first on Above the Law<\/a>.<\/p>\n

\"\"
(Photo by Bill O\u2019Leary\/The Washington Post via Getty Images)<\/figcaption><\/figure>\n

Justice Stephen Breyer may no longer sit on the Supreme Court, but he still has thoughts about his old workplace. Tomorrow, Open to Debate<\/a> is dropping a wide-ranging interview with Breyer covering everything from his personal account of the day he was nominated to the Supreme Court to the mechanics of the conversations justices have. <\/p>\n

He also gives his secret strategy for making sure he\u2019d get assigned an opinion with just three little words.<\/p>\n

However, a good deal of the conversation explores themes from his latest book Reading the Constitution: Why I Chose Pragmatism Not Textualism<\/em>. Breyer\u2019s book and the related discussion provide a frustrating take on judicial philosophy. Not because the justice fails to lay out intellectual case against either textualism or originalism, but because he addresses them with the respect they have done nothing to deserve. <\/p>\n

There\u2019s nobility in raising the level of discourse through professional and respectful engagement. But it\u2019s also the kind of nobility that gets offed in the first season of Game of Thrones.<\/p>\n

It\u2019s a matter of victory conditions. Textualists don\u2019t care about convincing everybody, they just need their trash ideas treated \u201cfairly\u201d by respected people so they can pawn off their worldview as reasonable disagreement. Defenestration via Overton Window.<\/p>\n

Efforts to unilaterally elevate the conversation miss the mark because they fail to grasp this victory condition issue. The conservative legal movement doesn\u2019t care that you can respectfully poke holes in their chosen interpretive philosophy \u2014 they more or less know it sucks \u2014 they just want it treated with unearned dignity on the public stage so they can trade on the patina of credibility that affords.<\/p>\n

The Open to Debate crew notes that they recorded a prior debate titled \u201cShould SCOTUS, the Supreme Court, focus on the original meaning of the Constitution?\u201d and I know that because I was on that one!<\/a> I recall Professor Randy Barnett laid out \u201cfive normative arguments\u201d for originalism and I was allowed to ask a question at the end prompting him to concede his \u201cnumber one\u201d argument. If only I\u2019d been able to ask more questions, we could\u2019ve knocked them all out! But the point is even the defender of originalism was willing, when pressed, to admit he wasn\u2019t even persuaded by the top argument he presented. It\u2019s just throwing pasta on the wall and hoping the other side is polite about it.<\/p>\n

This doesn\u2019t mean forfeiting critique or descending into Twitter-thread invective. Refusing to engage is its own vice. But tone matters. If the argument registers as polite disagreement rather than scathing teardown, textualists can declare mission accomplished.<\/p>\n

If there\u2019s a quote from the discussion that captures this disconnect, it\u2019s this one:<\/p>\n

\n

So if you, you say to the textualists, what, uh, \u201cDo you agree with Brown versus Board of Education?\u201d They say, \u201cYes, of course.\u201d\u00a0<\/p>\n<\/blockquote>\n

Ahem.<\/p>\n

\"\"
<\/figcaption><\/figure>\n

This isn\u2019t hyperbole. During the first Trump administration, Democrats took to asking his judicial nominees if they would at the very least agree that Brown v. Board<\/em> was correct and they\u2026 struggled mightily<\/a>. They weren\u2019t being asked if Brown<\/em> required a return of bussing or anything, just if \u2014 on its own facts \u2014 they agreed with the unanimous Supreme Court opinion against Jim Crow education. Koosh balls aren\u2019t even that soft. And yet it caused much hemming and hawing among Trump\u2019s nominees. Indeed, the counsel shepherding GOP nominees through the Judiciary Committee at the time threw a tantrum that it was unfair \u201cgutter politics\u201d to make nominees defend desegregation while under oath<\/a>. <\/p>\n

So when Justice Breyer grants the champions of textualism and originalism the benefit of the doubt that they would \u201cof course\u201d say they support Brown<\/em>, he doesn\u2019t grasp the conservative legal movement\u2019s YOLO era where they\u2019ve stopped pretending and just raw dog judicial review. There are certainly still originalist wizards willing to offer lip service to Brown<\/em> ending de jure<\/em> segregation while playing semantic games to guarantee de facto<\/em> segregation, but for a lot of them the hood is now off. Or on as the case may be.<\/p>\n

Either way, it renders this academic sparring session with textualism a naive exercise. He\u2019s saying they would say \u201cof course\u201d as if these folks have some good faith belief in Brown<\/em>, when recent events make pretty clear the movement only ever said \u201cof course\u201d to further the con that their philosophy had any depth to it.<\/p>\n

The whole approach feels like chiding Orval Faubus that his articulation of states\u2019 rights misreads the Federalist Papers. As the ubiquitous goose meme would ask, \u201cA STATE\u2019S RIGHT TO DO WHAT?!?<\/a>\u201d The point forcefully expressed by our feathered friend is that the philosophy is inextricable from its purpose. That\u2019s the nut that an academic conversation about this stuff can\u2019t get at: originalism\u2019s whole appeal is that constitutional law was better in the 1700s. \u201cFor who?\u201d the goose might ask. Which is wrong because it should be \u201cfor whom\u201d but geese are terrible at grammar. But when someone decides they\u2019re an originalist, you can\u2019t haggle with them over finer points of workability \u2014 valid though those points may be \u2014 because they\u2019re in it for the value it represents. They\u2019re in it because they actually believe in a backward-looking world. Tear down originalism from the ivory towers and they\u2019ll just invent a new mechanism to get there.<\/p>\n

Which is all to say the conversation is interesting but incomplete. Until someone in Breyer\u2019s position delivers their sharp argument without conceding the textualist\/originalist covert demand for respectability, these discussions do little to derail the steady advance of a jurisprudence of witch-hunters<\/a>.<\/p>\n

The episode is out tomorrow and covers this and much more. Check it out here:<\/p>\n

7\/4:\u00a0Thinking Twice: Reading the Constitution with Justice Stephen G.\u00a0Breyer<\/a> [Open to Debate]<\/p>\n

\n

\"Headshot\"Joe Patrice<\/a>\u00a0is a senior editor at Above the Law and co-host of Thinking Like A Lawyer<\/a>. Feel free to\u00a0email<\/a> any tips, questions, or comments. Follow him on\u00a0Twitter<\/a>\u00a0or Bluesky<\/a> if you\u2019re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search<\/a>.<\/em><\/strong><\/p>\n

The post Justice Breyer Dismantles Originalism Like It Deserves Respect. It Doesn\u2019t.<\/a> appeared first on Above the Law<\/a>.<\/p>\n","protected":false},"excerpt":{"rendered":"

(Photo by Bill O\u2019Leary\/The Washington Post via Getty Images) Justice Stephen Breyer may no longer sit on the Supreme Court, but he still has thoughts about his old workplace. Tomorrow, Open to Debate is dropping a wide-ranging interview with Breyer covering everything from his personal account of the day he was nominated to the Supreme […]<\/p>\n","protected":false},"author":3,"featured_media":125428,"comment_status":"","ping_status":"","sticky":false,"template":"","format":"standard","meta":{"_et_pb_use_builder":"","_et_pb_old_content":"","_et_gb_content_width":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[16],"tags":[],"class_list":["post-125655","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-above_the_law"],"jetpack_featured_media_url":"https:\/\/i0.wp.com\/xira.com\/p\/wp-content\/uploads\/2025\/07\/Headshot-300x200-shF2Ev.jpeg?fit=300%2C200&ssl=1","jetpack_sharing_enabled":true,"_links":{"self":[{"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/posts\/125655","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/users\/3"}],"replies":[{"embeddable":true,"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/comments?post=125655"}],"version-history":[{"count":0,"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/posts\/125655\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/media\/125428"}],"wp:attachment":[{"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/media?parent=125655"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/categories?post=125655"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/tags?post=125655"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}