This really good book feels like a strong response to Scalia and Garner's Reading the Law, which I started and now feel that I have to finish. As Breyer sees it, the traditional way that judges have interpreted the law over the course of U.S. history is by first looking at the text, but then by looking at the legislative purpose of the law, the context in which it was passed, social realities, and several other factors that could influence their ruling. His problem is that textualism seeks to eliminate many of these important factors in order to focus solely on the text of the law. Breyer focuses most on the legislature's purpose in passing a law without ignoring the text. What is interesting is that Breyer couches his argument in the basis that his way of interpreting the law is actually the traditional way, which is an interesting viewpoint. After all, was Marbury v. Madison a textualist, or originalist, decision?
Breyer summarizes his issues with originalism by criticizing exclusive focus on the text for requiring judges to be historians, leaving no room for judges to consider the practical consequences of the rules they create, and for not taking into account the ways that a society's values evolve over time. I found him to be very persuasive. For example, one issue Breyer takes with textualists is that they seek to form hard rules with broad applications, contrary to the traditional common-law practice of setting up looser standards by which judges can rule narrowly on issues that come before them. Breyer's preferred analysis gives less power to the Supreme Court, and more power to the trial judge. Additionally, Breyer makes a good point when he writes that, "We do not automatically turn to dictionaries alone to resolve uncertainties about just what, for instance, the televangelist Kenneth Copeland meant when he uttered his sermon about how to behave during a global pandemic. When we learn from the minister that he is dispelling coronavirus by 'blowing the wind of God,' we do better to uncover his meaning by looking at his reasons for articulating his sermon in the way that he did than by consulting dictionaries for definitions of 'blow' and 'wind.'" However, I think originalists would consider the speaker's purpose in a situation like this as a means to understand how readers/listeners would understand it.
All in all, this was a very interesting book. At times, it feels a little bitter since Breyer is relitigating old cases, many of which left him in dissent. It feels like a sort of ideological rearguard against an age of originalism that is upon us. But like many legal eras, Breyer believes that originalism will fade after a few decades. He quotes twice from Paul Freund, who said that the Supreme Court "should never be influenced by the weather of the day but inevitably ... will be influenced by the climate of the era." I think textualism/originalism can have a strong appeal in a time when people want certainty out of the Supreme Court, but it seems unlikely to provide any more certainty than past systems of interpretation. I come away more convinced that there are no "right" answers, but that some ways of interpreting the law are better for particular times. I feel like we need more interpretations that promote workability, since our government has become so dysfunctional. The Supreme Court doesn't do us any favors by ignoring the consequences of its rulings. But then again, it can't go beyond what the law says. It's a hard job.
