Trump's Trials - Former Supreme Court Justice Breyer on the dangers of constitutional 'textualism'

Episode Date: March 30, 2024

This week on Trump's Trials, host Scott Detrow is joined by retired Supreme Court Justice Stephen Breyer. In Breyer's new book Reading the Constitution: Why I Chose Pragmatism, Not Textualism, Breyer explains why he finds textualism's popularity troublesome. Textualism is the legal theory that argues the correct way to interpret the Constitution and statutes is to read the text as it was understood at the time the documents were written. Pragmatism, the legal theory Breyer favors, takes current social and political context into consideration when formulating a legal opinion. In Breyer's view, textualism can weaken the public's faith in the rule of law and poses risks for the health of nation. However, Breyer was reluctant to comment on cases pending before the court, like former President Donald Trump's claim he is immune from criminal prosecution because of presidential immunity. Topics include: - Pragmatism vs. textualism- Public opinion of the court - Trump and immunity Follow the show on Apple Podcasts or Spotify for new episodes each Saturday.Sign up for sponsor-free episodes and support NPR's political journalism at plus.npr.org/trumpstrials.Email the show at [e-mail] more about sponsor message choices: podcastchoices.com/adchoicesNPR Privacy Policy

The former Supreme Court Justice has a warning. Being a judge is about more than reading the Constitution. From NPR, this is Trump's Trials, I'm Scott Detro. We won't go! This is a persecution. He actually just stormed out of the courtroom. Innocent till proven guilty in a court of law. Kinda feels like deja vu, but we have a trial date for the hush money case.

Mark your calendars. Jury selection will begin in New York City on April 15th. Judge Juan Marchand, who's overseeing the case, has also imposed a limited gag order on Donald Trump, preventing him from speaking about witnesses, lawyers, court staff, their families and district attorney staff working on the case. Trump has already attacked the judge's daughter on Truth Social, accusing her of being quote, a rabid Trump hater. Trump is no stranger to gag orders of course, he had one imposed against him in the New York civil fraud trial. This one though comes as Trump is the presumptive Republican nominee for president and is spending a lot of

time when campaigning talking about these cases. In another New York courtroom this week, an appeals court lowered Trump's civil fraud penalty from $454 million to $175 million. Trump has until next week to produce a bond and avoid asset seizure, and if you want to hear more about that, you can check out our feed for recent episodes explaining the situation. So that is the key stuff from this week, but today we are going to do something a little bit different. Earlier this week, I sat down with retired Supreme Court Justice Stephen Breyer, and I talked to him for a couple of reasons.

The main one is that he has a new book out arguing for a judicial philosophy of pragmatism, but I also wanted to try as best as I could to get Breyer to help us understand how the court is thinking about the criminal cases Trump is facing. Because right now, the Supreme Court is playing an enormous role in how they play out. Earlier this year, the court blocked states like Colorado from booting Trump off of the ballot, and next month, it'll hear arguments over whether or not Trump or any other president has immunity for the laws of the land while in office. Breyer was appointed to the court in 1994 by President Bill Clinton, and during his nearly 30 years on the bench he was a part of landmark and often times divisive decisions

like Bush v. Gore, Citizens United, and Dobbs, the ruling that ended the constitutional right to abortion. Those decisions and other controversies have led to public distrust in the court. Breyer blames those trends in large part on the rise of textualism, a legal theory that believes the right way to interpret the Constitution and its statutes is to read the text as it was understood at the time it was written. This is now the common school of thought among the majority of the justices on the court. And in his new book, Breyer explains why he sees textualism as a threat to the court and to the country as a whole. When we come back, my conversation with Justice Stephen Breyer.

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Instead of scrolling mindlessly, engage mindfully with the NPR app. With a mix of on-demand news, stories from this station, and your favorite podcast, you can relax without shutting off your brain. Download the NPR app today. And we're back with Justice Stephen Breyer. I started the conversation by asking him if the court takes into consideration public opinion and the political mood when making its decisions.

Why did I write this book? I wrote it because lots of people think to consideration public opinion and the political mood when making its decisions. Why did I write this book? I wrote it because lots of people think who don't like say Dobbs or other decisions and there are other people who do like them. But a lot of people think that when decisions come along they don't like it's political. Or maybe it's just people doing what they want, what they think is good. But in any case, in 40 years as a judge, 28 on the Supreme Court, that has not been my experience.

You can't say zero. You can't say zero about anything. But that to me is not the best way to look at it because it is not the best way to deal with the problems of interpretation and the problems of law that I've seen on the court. What the political groups do is try to convince political people in Congress or the President, appoint Mr. Smith. What they think is that Mr. Smith has a judicial philosophy, an outlook on how to decide cases, which will lead to results that they politically like. Now, they may be right, they may be wrong, but the judge is thinking

he's doing what the law demands. And that matters because I think now the law, the interpretation system, the way you approach cases has been moving in the wrong direction. Marc Thiessen Justice Breyer, I have a question about pragmatism, and I think there is an enormous test of pragmatism in front of the court right now. And that is the case that the court is considering about a month from now, tied to former President Donald Trump and whether or not presidents have immunity. And the court's decision to take this case has raised major questions about whether Trump will go to trial before the election.

So this is the pragmatic question that millions of Americans are thinking about right now. Should timing factor into the court's thinking? Timing, should it factor? It depends on the case, whether it would or not. But normally it doesn't. Normally, when you have a case, and I'm not saying about that case, because that's a future case that I'm not talking about, but normally when you have a case, much more than people think, much more than people think.

What happens inside the court? Nothing that they don't find out about in the opinions. A court inside the inside story is usually not much. Cases come up to the Supreme Court. Several thousand want us to hear them. We don't have to. And we'll probably take cases where lower court judges have come to the different conclusions about the meaning of the same words in a statute or in the constitution,

about the application or meaning if they've come to different conclusions. They're good judges. If four of us think we should hear it to try to iron this out under federal law, we probably will. And then they write briefs, petitioner, the respondent, the government, groups that are for the one or for the other, and we read those briefs. This is a remarkable situation that tests core constitutional questions about federal elections, about multiple branches of government, and this key question of should there be a criminal trial when a presidential nominee has been charged with crimes? This just seems

like a remarkable question that puts all of these things you're talking about right in front of the court right at this moment. And I'm wondering how you think about it. Oh I don't know. I don't think about it now in depth because I have retired. I'm going to press this one more time because you know that that's my job. You have declined to weigh in on this immunity question or other matters in front of the court in several interviews that you've done for this book. And I do have to ask, I haven't really heard you fully explain why you're choosing not to because as you said, you're a retired justice now. You're not presiding

in over any of these cases. You're not going to be writing an opinion on these cases. Why not tell us how you, one of America's top experts on this particular issue, how you're thinking about this? Well, I think it's not very ethical. I've resigned from the court. I do not have a vote. And I don't think I, at least, a person who has resigned should be trying to influence or second guess the people who are on the court. I'm wondering on the really big questions how frequently you were able, and I'm not asking for specifics, how frequently you were able to change the mind of fellow justices

when it came to this because I think there are a lot of Americans who think the only thing that changes the direction of the court is whether a Democrat or Republican president appoints the next justice. No, that isn't so. I mean, there are lots of... Why do we have our conferences? I mean, what you say is not unreasonable. There are some judges who thought just like you, but I have never thought that way. Well, most of them, no. Why do I think it's so important that people understand what's going on here with what you might call the basic approach, the basic theory? Why? Well, this I can't

prove. And it's abstract, but I can't prove it. I had in my office a woman from Ghana who was the chief justice in trying to make their constitution or make their law more protective of human rights. And she asked me, why do people do what you say? You see, you bring up Bush V Gore. And I have to say, there is no single answer. It takes a long time. Maybe it took us 100 years. Maybe it took us 200 years. It took a long time. But I heard Senator Reid say about Bush v. Gore, and he was a Democrat. He said, I'm sure he didn't agree with Bush v. Gore. I didn't agree with Bush v. Gore. I dissented. And when I'm talking to students at Stanford, I say what he said, the most remarkable thing about that case is very rarely remarked, despite

the fact that it affected a lot of people, despite the fact that the country was against — well, at least half the country was against it, maybe a few more, I don't know — despite the fact that it was wrong, in my opinion and in his, despite that, people did follow it. And Al Gore said, he said, don't trash the court. That took 200 years, all right? And I say, I know, I'm at Stanford, and I look at your faces and I can tell you that at least 30% of you are thinking too bad a few stones weren't thrown. Too bad there weren't a few riots. But before you decide that definitely, I hope you'll turn on the television set and see

what happens in countries that decide their major problems that way. Matthew 2.20 Justice Breyer, I have to follow up that 20 years later, exactly what you're describing did happen across the street from the Supreme Court. Across the board, the courts and the state and federal level said that Joe Biden won the election and yet an angry, violent mob attacked the US Capitol. When you talk about the institutions of government, how do you account for that? Dr. Richard Hildreth I don't want to discuss things that may be... I've explained why. And what I'm telling the Stanford students and what I think is debatable. You might debate this. What I think is relevant

is the rule of law requires not judges and lawyers explaining why it's so good, which is what we're doing now, but the average person. Contrary to popular belief, we have 320 million people in this country and 319 million are not lawyers. And they're the ones that have to accept a rule of law. All right. And you go talk to people in the villages, in the towns, in the cities, and explain to them why it's desirable usually to accept the result in a case, even if you think it's wrong. Uh-huh.

Now suppose you don't. Well, the thing that it's literature there that really made an impression on me. Have you ever read Camus' book, The Plague? I had an occasion to reread it a few years ago. Good. Good. It was timely. You will see it's about a plague, but it is also timely because it's about the Nazis in Germany, in my opinion, and how people behave, some good, some well.

And at the end, he asks this question. He asks the question, why did I write the book? And his main answer is this. He wanted to tell us how people behave, but he also wanted to tell us. And he says, the plague germ, as you know, never dies. Never. It simply goes into remission. It lurks, those Nazi plagues. It lurks in the

attics and the hallways and the file cabinets one day to re-emerge to the detriment or education of mankind and sends its rats again to invade a once happy city. Well, that happens because we all have that plague germ somewhere in us and we have weapons to fight against it. And the rule of law is one of those weapons. And so I don't like to see it weakened and I fear that a system of interpretation which just looks at words and doesn't look at values and doesn't look at principles and doesn't look at consequences, I'm afraid that such a system will weaken the extent to which law itself can help people in the United States as well as elsewhere. Three hundred and twenty million live together.

Every view under the sun, every race, every religion, those people live together peacefully, by and large, and productively. And that's what we want. And those values in the Constitution, those values are democracy, civil human rights, basic human rights, a degree of equality, separation of powers so no one gets too powerful. All of those things, they're there and we want to preserve them. And weakening people's confidence in the system of laws ability to bring about a more harmonious society, a more productive society, a society

that lives more closely to those values that those framers put in that document. No, that weakens the weapon that we have, one of the weapons that we have against that plague germ that Camus writes about. Justice Stephen Breyer, who served on the United States Supreme Court from 1994 to 2022. His new book is called Reading the Constitution, Why I Chose Pragmatism, Not Textualism. Justice Breyer, thank you so much. Thank you. We'll be back next week with another episode of Trump's Trials.

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