Stephen Breyer, former associate justice of the Supreme Court of the United States, defended his pragmatist approach to interpreting the U.S. Constitution at the Noah Krieger ’93 Memorial Lecture hosted by the Taubman Center for American Politics and Policy Tuesday evening.
In conversation with Yale Law School Professor Justin Driver ’97, Breyer spoke about his judicial philosophy to a packed room that included Providence Mayor Brett Smiley, Rep. Barbara Ann Fenton-Fung (R-Cranston) and former Cranston Mayor Allan Fung.
The conversation largely focused on the themes of Breyer’s latest book: “Reading the Constitution: Why I Chose Pragmatism, Not Textualism.”
Breyer began the conversation by highlighting that the Constitution’s words “very often, do not tell you the answer.”
He explained his approach to interpreting and applying the law to real-world scenarios, encouraging jurists — or legal experts — to “look at the purposes” of constitutional provisions or “look at the consequences” of a potential decision.
“If there are terrible consequences, that’s a good reason for staying away,” Breyer said.
In making the case for his pragmatist approach to reading the Constitution, Breyer argued that judges who subscribe to a textualist interpretation encounter practical constraints. These jurists, he argued, must make value-driven choices about which cases to overturn on the basis that they were “egregiously wrong,” drawing on the language of Justice Samuel Alito’s majority opinion in the court’s 2022 decision in Dobbs v. Jackson Women’s Health Organization.
“I see you are only going to overrule those that are egregiously wrong, but how do you know which are egregiously wrong?” Breyer asked the audience.
During the hour-long event, Breyer also offered an inside look at the court’s deliberations over some of its most consequential decisions.
In response to a question from Driver asking Breyer to identify a case in which he regretted issuing a particular dissent, Breyer referenced his dissenting opinion in Parents Involved in Community Schools v. Seattle School District No. 1, a 2007 decision on the use of race in drawing public school district boundaries.
“The nine people on the court are not necessarily the great experts on whether we’re going to bring the country together without affirmative action,” Breyer said, explaining his stark disagreement with the reasoning employed in the majority opinion of the case, authored by Chief Justice John Roberts.
“The Constitution, when it says ‘equal protection’ of the law, gives people leeway to experiment, to come up with the way to achieve its great objective,” Breyer added.
But despite disagreements on the bench, Breyer told the audience that the justices were cordial and professional in conferences behind closed doors.
“I have never heard a voice in that conference raised,” Breyer said. “I have never heard a judge in that conference insult — not even as a joke — another justice in that room.”
“Often we get the outsider view on the Supreme Court,” said event attendee Porter Culp ’28. “So it was so fascinating to get a personal look into what it was like in the process of decisions.”
In an interview with The Herald before the event, Breyer noted the nation’s increasing political polarization as one of the biggest challenges facing the court.
“A lot of the country is very divided politically and that produces probably more cases that the press writes about,” Breyer said. “Every judge is aware of the climate of the era.”
Breyer encouraged students to participate in political and civic life, arguing that those who do not participate in the “public business” have “no business in the public.”
He also urged the audience to maintain civil discourse, even on issues with stark ideological divides.
“Find a person who you believe is honestly intelligent and thinks the opposite of what you think,” Breyer said. “Go to that person and you talk to them. No, don’t talk too much — listen.”
Ethan Schenker is a university news editor covering staff and student labor. He is from Bethesda, MD, and plans to study International and Public Affairs and Economics. In his free time, he enjoys playing piano and clicking on New York Times notifications.
