The Beautiful, Maddening Naivety of Stephen Breyer

That there are untold millions of well-meaning people who lack any semblance of a bad-faith argument detector is painfully obvious to you, the Bad Faith Times reader. 

The central conceit of this publication is that public officials and opinion shapers on the left operate under an unshakeable presumption of good faith, that everyone means what they say all the time. It is the West Wing disease, and it’s killing the republic. 

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Perhaps no living person embodies good-faith naivety more than former Supreme Court Justice Stephen Breyer. Since retiring from the Court in 2022 so liberals might not soon face a 7-2 Court deficit, Breyer has been quite vocal in his charge that something is off with the Court’s radicalized far-right majority. What that something is, Breyer can’t quite say. 

In fact, reading Breyer’s comments about the Roberts Court over the past two years, the man seems downright flummoxed as to why his former colleagues are overturning long standing legal precedent at a horrifying rate (the Supremes this week stripped the federal government of immigration enforcement, meaning states can now create their own border policies, a nice little recipe for a civil war). 

Breyer has a book coming out this spring, “Reading the Constitution: Why I Chose Pragmatism, Not Textualism,” in which he critiques the right’s use of “originalism” to advance the larger conservative project that relies heavily on the courts to override and outright ignore public opinion in favor of the most absurd right-wing solutions to the nation’s most vexing problems (I am begging Joe Biden to expand the Court before it's too late).

Originalism – an utterly bogus legal theory practiced by bad-faith performance artists like Clarence Thomas and Samuel Alito – “fetishizes the texts of statutes and the Constitution, reading them woodenly, without a common-sense appreciation of their purpose and consequences,” Breyer said. 

And yes, that’s right. But it’s only part of the equation as to why conservative justices would filter their every decision through the lens of originalism, or textualism. What Breyer – an extraordinarily learned and wise man – seems not to understand is that his former right-wing Court colleagues don’t use originalism out of principle. They use it because it allows them to prescribe their favored policy outcomes, which just so happen to align with the favored outcomes of the most deranged, proudly ignorant members of Congress, and of course, Donald Trump. 

Constitutional originalism, as I outlined here, is a nonsense legal theory in the most basic sense.

Originalism, for the uninitiated, is the absolute bullshit theory that the Constitution should be read as a document frozen in time, not as a living legal guide can can (and should) be interpreted to account for factors like, say, human progress. No one, even originalists, really believes this is a valid theory. Originalism's lack of seriousness is as jarring as it is comical. There are no true originalists, only true-believing political actors donning long black robes who understand the only way to turn back the clock and create an idyllic fascist society is to pretend the American founders wanted their ramblings to be interpreted as literally as possible.

It works because the founders spelled out the rights they wanted in their new nation. The rights enumerated in the Constitution are for rich male slavers – no one else. These men were vial beyond comprehension, dressing up subjugation and domination as intellectualism. In this way, the U.S. Constitution is the ultimate expression of bad faith. It did not mean what it claimed to mean. Two hundred and fifty years later, the nation's worst people are holding up the bad-faith document as justification for crushing individual rights into dust. It makes sense – the worst kind of sense, but sense nonetheless.

Breyer in an interview with The New York Times criticized the Supreme Court ending federal abortion rights not as immoral or legally dubious, but as impractical. 

“There are too many questions,” Breyer told the Times. “Are they really going to allow women to die on the table because they won’t allow an abortion which would save her life? I mean, really, no one would do that. And they wouldn’t do that. And there’ll be dozens of questions like that.”

Well yes, Stephen, they are going to allow pregnant women to “die on the table.” It’s happened since Roe was killed and will continue to happen until congressional Democrats do what it takes to reinstitute abortion rights protections. Republican state lawmakers ideologically aligned with the very justices who eviscerated abortion protections, are passing laws that criminalize miscarriages and threaten abortion care providers with prison time or even the death penalty. As Physicians for Human Rights said in a harrowing 2023 report, the end of Roe is a "pressing human rights issue" in the United States. How Breyer doesn’t know this is beyond me. It’s infuriating. 

Breyer, according to NYT, “did not accuse the justices who use those methods of being political in the partisan sense or of acting in bad faith.”

This is the head-slapping moment for me (and you, most likely). Probably Thurgood Marshall is slapping his head in the grave. Breyer gets almost all the way there in analyzing how and why the Supreme Court’s conservatives are taking a chainsaw to established legal precedent but falls just short of (rightly) accusing them of acting in bad faith, pretending to believe their approach to the law is apolitical. 

It all makes terrible sense, however, when you dig into Breyer’s approach to the law – which I did so you don’t have to. Breyer in a 2015 interview said he was always smitten when right-wing Supreme Court justices would align with him on a ruling. In doing so, Breyer revealed his total lack of bad-faith comprehension. 

“When you reach a conclusion, and you put words down on the paper, and you’ve written an opinion, of course you’re pleased if others agree,” he said. “I mean, if you didn’t think it was right, why would you write it?”

Why, indeed, Stephen. Why indeed. 

Follow Denny Carter on BlueSky at @cdcarter13.bsky.social and on Threads and X at @CDCarter13.