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The book also explores cases where the high court’s current conservative majority’s textualist approach has resulted in erroneous rulings with significant national consequences, particularly restricting access to abortion and expanding gun rights. It also serves as Breyer’s warning that it is connected to.
For more than 250 pages, Breyer details what textualism and textualism are and explains why he believes the philosophy limits how the law is applied in modern times. One of the fundamental problems with the “originalist” approach is that judges have little experience in “answering historical issues or applying those answers to solve contemporary problems.” This, he writes, assumes that one can become a historian.
“I’m not saying ‘never’ look at history; it’s often a useful tool,” Breyer wrote. “But telling judges that they must rely solely on history imposes a task on them that they cannot accomplish.”
Alan Morrison, associate dean for public interest and public service at the George Washington University School of Law, said Breyer, who was nominated to the Supreme Court by President Bill Clinton in 1994 and will retire in 2022, will sit on the court. He said it was not surprising. The book raises questions about certain court decisions and expresses concerns about the future of the court. Indeed, in his 2019 memoir, Mr Morrison pointed out that former judge John Paul Stevens had done something similar.
“I think what Judge Breyer is trying to do here is explain in an easy-to-understand way…try to help people understand why he believes textualism is not a very good idea. ”Prime Minister Scott Morrison said that Justice Breyer’s argument was friend. “The beauty of this book is that he does it using concrete examples to show why textualism doesn’t work and why we need other approaches,” Morrison said. added.
In his book, Breyer examines in detail two major Supreme Court cases in 2022 (the last term of the justices), and finds that the majority used a constitutional approach to constitutional interpretation, which has already led to political They argue that the ruling was wrong and disadvantageous to a divided nation. : Dobbs v. Jackson Women’s Health OrganizationThis repeals the constitutional right to abortion that has existed for nearly 50 years. New York State Rifle & Pistol Association v. Bruen, This law established that law-abiding Americans had the right to carry a handgun outside their homes for self-defense.
In his book, Breyer outlines just a portion of America’s evolution since 1790. It’s an explosion in population, more citizens living in dense cities, and guns that have evolved to allow shooters to kill more people, faster. This degree is probably beyond the imagination of its founders. ”
“For these reasons and others, guns today pose a unique threat to American society if not properly regulated,” Breyer wrote. “However, originalism says that judges cannot take into account these modern developments and practical realities. Nor can it take into account the interests of the federal, state, and local governments.”
In his dissenting opinion, blue en, Breyer argued that the majority’s decision will make it more difficult for state legislatures to take steps to limit the dangers of gun violence. The Second Amendment allows states to “consider the serious problems posed by gun violence,” wrote Breyer, who was joined by Justices Sonia Sotomayor and Elena Kagan.
Breyer goes on to argue in his book that “uniting a diverse nation for hundreds of years” requires a pragmatic approach to interpreting the Constitution as a “workable” document, and that the court’s decision is quoted. Blueen.
“How can its constitutionally based legal philosophy ignore these practical realities and the deadly consequences of defeating the efforts of democratically elected bodies to address those realities? ” Breyer wrote. “I don’t think you can do that.”
Mr. Breyer also offers a fairly detailed critique. dobbs The ruling was overturned by the court’s conservative supermajority. Roe vs. Wade Because the people who ratified the Constitution in 1788 and the Fourteenth Amendment in 1868 did not understand the instruments that protected reproductive rights..
But Breyer argues that only white men ratified the Constitution and the 14th Amendment. This is because at neither point were women “understood as formal members of the political community.” (A woman could not get the right to vote until 1920.)
“Recognition of women’s rights, from the right to vote to the right to abortion, grew out of and contributed to the growing role of women in society, especially in the workplace and politics,” Breyer writes. “In the face of this progress, originalism recognized the types of freedom benefits afforded under the Fourteenth Amendment to the Constitution, where women were not thought to have a separate legal identity from their husbands. It will be limited to what the men of the time were thinking.”
Moreover, Breyer writes that the textualist approach does not necessarily bring the certainty to the law that its proponents claim. For example, many questions remain regarding abortion. Does the Constitution guarantee abortion to save a woman’s life? Whether states can ban mail-in abortion pills could lead to further Supreme Court litigation.
” dobbs The majority’s expectation that the legislature, rather than the courts, would decide abortion issues will not materialize. After all, different states have different laws and are enforced differently,” Breyer wrote. “Similar questions can easily be considered with the help of the Second Amendment and affirmative action. These questions may prove complex and may need to be asked and answered again in court. and that could lead to further litigation.”
In his book, Breyer does not directly criticize the Supreme Court justices for their adherence to textualism and originalism, but only mentions “a few new justices.” [who] “I have only spent two or three years in court,” he said, reviewing major cases. The three new justices he is likely referring to, Neil M. Gorsuch, Brett M. Kavanaugh, and Amy Coney Barrett, all appointees of former President Donald Trump, were mentioned. However, it is only mentioned a few times.
“Big changes take time, and newly appointed judges decide whether to construct the law using only textualism and originalism, or instead utilize all the methods I have described here. It will take years,” Breyer wrote. “But as we plan how to change our interpretive system, we must think about what is most effective for the court and the country. As polls show, they are They may be concerned about a decline in trust.”
Breyer’s book is scheduled to be released on March 26, the day the Supreme Court hears a case deciding whether to limit the use of mifepristone, a drug used in more than half of abortions in the United States. This coincides with the date on which oral argument is scheduled to be held. state.
Ann E. Marimow contributed to this report.
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