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Former Supreme Court Justice Stephen G. Breyer criticized the reversal of Roe v. Wade as an example of a decision driven by judges’ personal beliefs rather than consideration of the law’s broader context during an event at Harvard Law School on Friday.
Breyer compared different methods of legal interpretation during the discussion, which was part of a conference on judicial review jointly hosted by the Harvard Law Review and Texas A&M University Center on the Structural Constitution. Jeffrey S. Sutton, a chief appeals court judge, moderated the talk.
Breyer endorsed pragmatism, which employs case history, personal experience, and real-world consequences as factors to consider when making judgements at the bench.
“Why shouldn’t experience matter? Why shouldn’t listening to the lawyers matter? Why shouldn’t it matter, in some cases, where you want to know, ‘what are the consequences?’” Breyer said.
Breyer drew a comparison between pragmatism and other methods, including a reliance on moral beliefs. He cited how in their justifications for the 2022 reversal of Roe v. Wade, some current justices described the original ruling as “egregiously wrong.”
The former justice questioned this logic, which he said was based on personal opinions. Breyer added that the nature of morality-based interpretation makes it more rigid than a judge’s objective discernment.
“I might substitute my views of what is good for the law, but you will never substitute your views of what is ‘egregiously wrong’ for the law,” Breyer added.
Breyer also made distinctions between pragmatism and textualism. The latter approach relies on analyzing the explicit text of a statute without considering outside information — and doing so, he said, assumes that there is a direct answer to the question at hand.
But the approach does not translate well to real life, Breyer added, which is often much messier than the theory assumes.
The former justice mapped out key tenets of pragmatism, including civil discourse between disagreeing parties. Breyer discussed guidance he was given by former Supreme Court Justice Anthony M. Kennedy, who told him that if he was ever having trouble passing a law, he should debate someone with opposing views on the matter.
Breyer said that challenging dialogue works in tandem with case history and legal review to lay the foundation for sound pragmatic judgement. By putting together a briefcase of diverse perspectives, judges can develop a nuanced perspective on the implications legal rulings may have.
The legal profession’s reliance on experience is what differentiates it from other fields like medicine and technology, Breyer added, which often center around rote memorization.
“You’re not going to learn the names of the bones in the body. You want that, go to medical school,” he said. “We are going to learn from experience.”
—Staff writer Caroline G. Hennigan can be reached at caroline.hennigan@thecrimson.com. Follow her on X @cghennigan.
—Staff writer Sidhi Dhanda can be reached at sidhi.dhanda@thecrimson.com. Follow her on X @sidhidhanda.
