Breyer says Supreme Court risks creating ‘Constitution that no one wants’

Former Supreme Court Justice Stephen Breyer said the Supreme Court risks creating a “Constitution that no one wants” if it follows its current way of interpreting law.

In an interview with Politico Magazine published Tuesday, Breyer discussed his view of originalism, a legal theory based on the idea that law should be interpreted according to the writers’ original intent, which is popular among the conservative majority on the court. 

Breyer said in the interview that he used to argue with the late fellow Justice Antonin Scalia, a noted originalist, about originalism and told him if the theory is used to interpret the Constitution, “or the statutes, we will have a Constitution that no one wants.”

“Because the world does change, not necessarily so much in terms of values, but certainly in terms of the facts to which those values are applied,” Breyer continued.

Breyer argued in the Politico Magazine interview that originalism discounts “lots of changes designed to further the value of protecting basic civil rights, because the world has changed.”

On Sunday, Breyer also said that he would support age limits for Supreme Court justices and that an age limit would have helped him make his own decision to retire in 2022.

“I don’t think that’s harmful,” Breyer said, talking about age-limited terms on the high court in an NBC “Meet the Press” interview with Kristen Welker on Sunday. “If you had long terms, for example, they’d have to be long. Why long? Because I don’t think you want someone who’s appointed to the Supreme Court to be thinking about his next job.” 

“And so, a 20-year term? I don’t know, 18? Long term? Fine. Fine,” he said. “I don’t think that would be harmful. I think it would have helped, in my case. It would have avoided, for me, going through difficult decisions when you retire. What’s the right time? And so, that would be okay.”