Former Justice Breyer rips conservative Supreme Court for giving nation 'Constitution no one wants'

In a recent interview with Politico, former Supreme Court Justice Stephen Breyer claimed that the current conservative majority on the court will give the U.S. a Constitution that "no one wants."

Breyer spoke to the media outlet ahead of the release of his new book, titled, "Reading the Constitution: Why I Chose Pragmatism, Not Textualism." In it, the former liberal justice spent time criticizing the interpretations his former conservative colleagues have been making in landmark Supreme Court cases.

He elaborated on these points in the interview. Politico Magazine senior writer Ankush Khardori reported, "If the court continues to deploy their methods of interpretation, Breyer told me, ‘We will have a Constitution that no one wants.’ It’s a remarkable statement from a former Supreme Court justice."

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Former U.S. Supreme Court Justice Stephen Breyer criticized his former conservative colleagues on the court during an interview with Politico Magazine.  (REUTERS/Kevin Lamarque)

The journalist asked Breyer about his point in the book warning about "originalism," noting that Breyer has called this lens of interpretation "inherently ‘regressive,’" writing that it "will not permit modern solutions to modern problems" as well as consigning "us to a set of views and values that predominated during a period when many groups of people today were not equal citizens."

Breyer affirmed those points in the interview, declaring, "When the founders were thinking about and writing the words of the Constitution and protecting certain basic rights in the Constitution, women were not really part of the political process. They didn’t have a right to vote, and there was slavery, and the slaves weren’t part of [the political process either]."

He continued, "In the 1860s, after the Civil War, they wrote words designed to protect some people, but the theory of who is part of this community — America, which precedes through democratic means — was quite different then than it is now."

The former justice added that an originalist interpretation "will overlook lots of changes designed to further the value of protecting basic civil rights, because the world has changed."

Breyer noted that he made the "no one wants" line while debating constitutional interpretation with the late Justice Antonin Scalia, telling the conservative giant that his method would be deeply unpopular among modern Americans.

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Members of the Supreme Court pose for a group photo at the Supreme Court in Washington, April 23, 2021. Seated from left are Associate Justice Samuel Alito, Associate Justice Clarence Thomas, Chief Justice John Roberts, Associate Justice Stephen Breyer and Associate Justice Sonia Sotomayor, Standing from left are Associate Justice Brett Kavanaugh, Associate Justice Elena Kagan, Associate Justice Neil Gorsuch and Associate Justice Amy Coney Barrett.  (Erin Schaff/The New York Times via AP, Pool, File)

The former justice went on to rebuke the conservative majority’s ruling in the 2022 Dobbs case. He said, "The majority thought in Dobbs there would be fewer cases — we will turn the abortion matter over to the states, and they will legislate or Congress will legislate and it won’t be decided by the courts."

He described how they were wrong, stating, "But Tuesday, there will be cases on abortion in the Supreme Court. Many states have many different abortion laws now, and I suspect that many of them will be decided in the court where the words will matter, where it will be more complicated than ever, and if you think it’s going to be simpler, I have a bridge in New York City I’d like to sell you."

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In a recent interview with NBC’s "Meet The Press," Breyer expressed his feelings on the Dobbs ruling, telling host Kristen Welker he had hoped he and his fellow justices at the time could have come to a "compromise" rather than overturning Roe V. Wade.

During that interview, he also called the leak of the Dobbs opinion signaling the end of Roe V. Wade "unfortunate."

Later in the interview, Breyer described what could result from this originalist interpretation of the Constitution over time, stating it "will move the interpretation of statutes away from the direction of trying to help people," and "will move the law away from the direction of trying to produce a society where 340 or 330 or 320 million people of every race, every religion, every point of view, can live together more peacefully and productively."