Justice Breyer thinks originalism is doomed to fail
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When Justice Stephen Breyer stepped down from the Supreme Court in 2022, he left the court with a record of accomplishment — but a legal approach that has been battered.
With former President Donald Trump’s three appointees on the bench, the court was firmly in the hands of conservative justices whose theories of constitutional and statutory interpretation differed fundamentally from that of the liberal Breyer. Their methods have already upended American law in recent years in a variety of areas, including, most notably, abortion — a subject to which the court will return on Tuesday, when it hears arguments over the availability of the abortion pill mifepristone.
In a new book that comes out on the day of the argument and in an interview with POLITICO Magazine, Breyer hits hard at the approach of his conservative former colleagues and sounds a public alarm.
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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The superstar conservative lawyers trying to kill the abortion pill
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It was 2014, and Erin Morrow Hawley was fighting against the egg-laying hens of Missouri. Specifically, a new requirement that chicken cages have enough space for the hens to stand up, turn around and stretch out.
A law professor from five generations of ranchers and the wife of Senator Josh Hawley, Ms. Hawley joined a challenge to California, which required more spacious enclosures for hens laying eggs to be sold there. The state where she taught, Missouri, sold a third of its eggs to California, and Ms. Hawley believed that a blue state had no right to impose its values and rules on Missouri’s farmers.
She joined in a lawsuit against California’s attorney general at the time, Kamala Harris. A judge found that the challengers could show no direct injury and dismissed the case. Ms. Hawley continued teaching, and Ms. Harris became Joe Biden’s vice president.
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Don’t ask the conservative legal movement what comes next
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On Tuesday, the Supreme Court will hear oral arguments in one of the most closely watched cases of its current term: a challenge to the FDA’s rules for the abortion pill mifepristone. The plaintiffs — who want to overturn FDA decisions that increased access to mifepristone by, among other things, allowing it to be prescribed online and mailed directly to patients — are represented by Alliance Defending Freedom, the conservative Christian legal fund that led the successful legal campaign to overturn Roe v. Wade.
Kristen Waggoner, ADF’s CEO, president and general counsel, has become the face of the group’s anti-abortion campaign, building a reputation within conservative legal circles as a formidable litigator and happy warrior for the anti-abortion cause. (Waggoner’s opponents, meanwhile, have compared her to the “cheerful authoritarian bureaucrat” Dolores Umbridge from the Harry Potter series.)
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Learn how to manage your cases
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