Rachel Rein (Columbia University, School of Law) has posted Justice Breyer’s Principled Pragmatism and Kagan’s New Living Constitutionalism and Lite Textualism (Trento Student Law Review (Forthcoming Spring 2022)) on SSRN. Here is the abstract:
This article is a comparative study of United States Supreme Court Justice Breyer and Kagan’s methods of judicial interpretation. By juxtaposing and comparing the justices’ judicial philosophies, this article aspires to clarify their methods and raise questions for further analysis. This article posits that the core of Breyer’s interpretative methods is pragmatism. However, Breyer does account for values and purposes. Thus, he is a “principled pragmatist” for both constitutional and statutory interpretation. On the other hand, Kagan exercises a “new” living constitutionalism in her constitutional interpretation but interprets statutes as a “lite” textualist. Part I first studies what Breyer and Kagan claim to be. In short, justices talking about judging. Breyer claims to be a living constitutionalist, purposivist, and pragmatist, while Kagan advocates for an approach that sticks closer to constitutional and statutory text. Next, Part II interrogates Breyer and Kagan’s judicial methods in practice. Put simply, do they do what they say they do (or aspire to do)? Part II finds that on balance, both justices consistently practice what they preach. But Part II also points out potential inconsistencies between Breyer and Kagan’s claims and practice. Overall, Part II centers on well-known constitutional and statutory opinions of Breyer and Kagan’s, mainly ones that they have said exemplify their interpretative methods. Using these opinions as a sample, instead of choosing a random sample, offers the opportunity to either agree with the justices’ assessment of their work or challenge it. These well-known cases, ones often fraught with social impact, are also more likely to differentiate the justices’ interpretative methods. Finally, based on the justices’ methods, Part III provides theories on what Breyer and Kagan may focus on in Dobbs v. Jackson Women’s Health Organization, involving one of our nation’s most contentious contemporary debates about abortion.