On March 3, 2025, the Harvard Law Review hosted Justice Stephen G. Breyer, Judge Kevin Newsom, Alana Frederick, and Thomas Nielsen (HLR ’24) for a discussion on statutory and constitutional interpretation. That conversation is reproduced in this transcript.
Otto Barenberg: Welcome, everyone. Good afternoon. I’m Otto Barenberg, the Articles, Book Reviews, and Commentaries Chair for Volume 139 at the Harvard Law Review. It is my pleasure and privilege to welcome you to today’s conversation on the timely and timeless topic of interpreting legal texts. We are extremely fortunate to be joined today by Justice Stephen Breyer, Judge Kevin Newsom, Alana Frederick, and Thomas Nielsen.
If there’s any panel of speakers capable of resolving these issues by 1:15 PM, it is this one here right now. I want to note that today’s conversation has already begun in the pages of the Harvard Law Review. In January, HLR published Justice Breyer’s commentary, Pragmatism or Textualism, the piece is a companion to his book, Reading the Constitution: Why I Chose Pragmatism, Not Textualism. In February, HLR published Judge Kevin Newsom and Alana Frederick’s review of Justice Breyer’s book entitled Snails, Trains, and Pragmatist Claims. You can find both of these pieces wherever you get your law reviews.
[laughter]
Now, it’s my privilege to introduce today’s speakers. Justice Stephen Breyer is a retired Associate Justice of the Supreme Court of the United States. [He was] born in San Francisco in 1938. He’s a graduate of Stanford, Oxford, and Harvard Law School. He taught law for many years as a professor at Harvard Law School and at the Kennedy School. He also worked as a Supreme Court law clerk for Justice Arthur Goldberg, a Justice Department lawyer in the Antitrust Division, an assistant Watergate Special Prosecutor, and chief counsel of the Senate Judiciary Committee.
In 1980, he was appointed to the U.S. Court of Appeals for the First Circuit by President Carter, becoming chief judge in 1990. In 1994, he was appointed to the Supreme Court by President Clinton. He has written books and articles about a range of legal topics, including administrative law, economic regulation, and the U.S. Constitution.
Judge Kevin Newsom is a member of the U.S. Court of Appeals for the Eleventh Circuit. He sits in Birmingham, Alabama. Before his appointment to the bench, Judge Newsom was the head of the appellate practice at Bradley Arant Boult Cummings. Before that, he was the Solicitor General of Alabama. As a practicing lawyer, Judge Newsom argued four cases in the U.S. Supreme Court and nearly forty more in the U.S. courts of appeals and state, supreme, and appellate courts.
Judge Newsom graduated summa cum laude from Samford University and magna cum laude from Harvard Law School, where he was an Articles Editor of the Harvard Law Review. Following law school, Judge Newsom clerked for Judge Diarmuid O’Scannlain on the Ninth Circuit and Justice David Souter on the U.S. Supreme Court.
Alana Frederick serves as the career law clerk and chief of staff to Judge Newsom on the U.S. Court of Appeals for the Eleventh Circuit. Alana also teaches and lectures regularly at various law schools across the country, including Yale, Stanford, and Cumberland.
Alana is an elected member of the American Law Institute. She’s the youngest elected member and the only one of a handful of female members from the State of Alabama and the only graduate of the University of Alabama to be elected. Alana graduated summa cum laude and Phi Beta Kappa from the Honors College at the University of Alabama. She then matriculated to the University of Alabama Law School, where she graduated cum laude and earned nine best paper prizes.
Following law school, Alana clerked for Justice Michael Bolin on the Supreme Court of Alabama, and then practiced law at Bradley Arant Boult Cummings in Birmingham, before joining Judge Newsom on the Eleventh Circuit. She’s deeply involved in the Birmingham community. She currently serves on the boards of directors for the Junior League of Birmingham, the Nature Conservancy of Alabama, the Service Field of Birmingham, and the Alabama Theater. She’s an active member of the Rotary Club of Birmingham, the Birmingham Committee on Foreign Relations, the Children’s Hospital Committee for the Future, and the PTOs for both of her daughters’ schools.
Thomas Nielsen received his J.D. from Harvard Law School in 2024 and is now an associate attorney at [a firm in Washington, D.C.], where he practices general litigation with a focus on appellate law. In the coming years, Thomas will clerk for Judge Randolph Moss on the U.S. District Court for the District of Columbia, Judge Stephanos Bibas on the U.S. Court of Appeals for the Third Circuit, and Justices Stephen Breyer and Ketanji Brown Jackson on the U.S. Supreme Court. At HLS, Thomas was Supreme Court Co-Chair of the Harvard Law Review, a teaching fellow for Professor Jim Greiner’s Civil Procedure course, and a research assistant for several professors, including Justice Breyer.
Last but not least, our moderator today is Andrew Carothers. He’s a 3L at Harvard Law School. He was the Articles, Book Reviews, and Commentaries Chair for Volume 138 of the Harvard Law Review. Before joining law school, Andrew worked as a management consultant, a staffer for U.S. Senator Jeanne Shaheen, and a policy analyst at the Bipartisan Policy Center. After graduation, Andrew will clerk for Judge Newsom on the Eleventh Circuit and Judge Vince Chhabria on the U.S. District Court for the Northern District of California.
Thank you all so much, and enjoy today’s conversation.
[applause]
Andrew Carothers: Thank you. Thank you very much, Otto. Before we dive into the meat of our discussion today, Judge Newsom, I know you have a quick word about the nature of this event and how it came together.
Judge Newsom: First, I want to thank Justice Breyer for having written the book in the first place. Alana and I have been traveling around the country doing talks about the book and our review, and we typically ask for a show of hands of those who have read it. For those who haven’t, we tell them to read it. If you have not read it, I couldn’t urge you in any stronger terms to read it. It’s such a valuable contribution.
So first, I want to thank Justice Breyer for his contribution to the Court, to the history of this country, to this conversation, to the willingness to do this event with us, and to take us into his little academic family to do this. We really appreciate that.
The second thing I wanted to do, as a public service announcement of sorts, is emphasize that there are four of us on the podium, so to speak, today. It is really important to both Justice Breyer and to me that Alana and Thomas be recognized as full partners in this endeavor.
I’ll say for myself that a lot of the really smart stuff — to the extent that our Book Review has smart stuff in it — a lot of the really smart stuff is Alana’s, including the snappy title: Snails, Trains, and Pragmatist Claims. Alana said she ran that by me, thinking that I would surely veto it as too cheesy, but I loved it so much that I said we’ve got to go with it. Truly, some of the smartest, most nuanced, most sophisticated material in our review is not out of my brain, it’s out of hers.
I think Justice Breyer likewise would say about Thomas’s contribution to the book and the Commentary that it was invaluable. I would just say to you, to the young and aspiring lawyers in the room, make yourself invaluable to someone, as Alana has made herself invaluable to me, as Thomas has made himself invaluable to Justice Breyer. Then, when you are in the position of someone like Justice Breyer or someone like me, find someone who is invaluable to you and pour into that person the way that you hope that someone is going to pour into you.
Look for those kinds of relationships. I think oftentimes, in law school, you don’t get that kind of professional advice. You get a lot of advice about where you’re going to go make the most money or the most impact or whatever. But, as I say, you only get to live this life one time, and your relationships with other people are going to be vastly more important to you than whatever it is that you’ve managed to achieve in your career. Because so much of what I’ve managed to achieve (Justice Breyer achieved all of his on his own merit), frankly, has been dumb luck. Don’t put all of your happiness in that basket.
I think first and foremost are the relationships. Find professional relationships that are as rewarding as the relationship, for instance, that Alana and I have and that Thomas and Justice Breyer have built. Alright. That’s my public service announcement to the young and aspiring lawyers.
Andrew Carothers: Thanks, Judge Newsom. I think that’s really important for all of us to hear. To dive into the topic of discussion today, I figure it only makes sense to start with the snails. We’ll see that the three gentlemen up here are all wearing snail ties.
Alana Frederick: I’m wearing snail earrings.
Andrew Carothers: What is the deal with the snails? Justice Breyer opens his book and the Commentary and Judge Newsom and Alana start their Book Review on this question of the snails on the train story from France. To read in the audience, they say, in France, a teacher boarded a train with a basket of snails. The conductor told her that she had to buy them a ticket and pointed to the fare rules that said that all animals brought on the train had to be in a basket and had to have a ticket.
She responds: “That’s ridiculous, as this rule clearly is designed to apply to dogs or cats or maybe rabbits, or something like that, but clearly, not snails.” He responds: “Well, is a snail not an animal? It’s an animal, so the rule applies.” I think that tees up today’s topic very well. I will pose it to each group here. How do you approach the “is the snail an animal” question, and how do you ultimately come out on that? I’ll turn it over to Justice Breyer and Thomas first.
Justice Breyer: Thank you, Thomas, and thank you [Judge Newsom] for thanking everybody. I wrote the book over several years, so there are several people who [were involved in helping me research and write it]. They’re all listed in the book.
I have a problem, which you might not have. Sometimes I talk to the seventh grade; sometimes I talk to the ninth grade, or even high school. Do you know where they are when I talk to them? They are looking out the window. The problem for all of us when we talk to the seventh grade or eighth or ninth or tenth is, how do we get them away from the window? Okay, so that’s what I put the snails in for.
I say, you want to know what I do? Well, I was in France, and I did see in the newspaper an article that said that a professor — he taught biology at a lycée — had twenty live snails in a basket. The conductor came up and said: “Have you paid for the snails?” He said: “That’s what they said, that’s what you said. It says in the fare book, read it.” The professor said: “What are you talking about? They’re talking about dogs or something or cats or rabbits.” It says no animals on the train except in a basket, and then you have to pay half fare. Now I say: “Well, what is it?” They come away from the window.
That’s the point. I don’t know how I decide the case. But they come away from the window and half of them say: “What are you talking about? They don’t mean you have to pay for a centipede, you have to pay for a mosquito, you have to pay for a house fly. It’s ridiculous!” “Is a house fly an animal?” Now, they will be screaming at each other for at least ten minutes. After ten minutes you say: “Great. You’re ready to be a judge.” I think that’s what judges do. The words are not necessarily “animal.” Maybe they’re “the freedom of speech.” Maybe they’re “right to bear arms.” Your job most of the time in an appellate court, and on the Supreme Court almost all the time, your job is to work out the scope of those words. Where do they apply, and where do they not apply? That isn’t always easy to do. Okay. Got it. So that snail is just the advertisement.
Andrew Carothers: Thomas, if you want to comment as well.
Thomas Nielsen: One thing I would add too is that my impression is that the point of the hypothetical at the beginning of the book was that it doesn’t really have a clean answer and that you need to know more, at least in our view. I think you would need to know more to answer a question like that accurately.
For example, just to spin out the hypo a little bit, why was the rule adopted? Was it adopted because animals create a mess on the train, and we’re trying to shift the costs of cleaning up to the people who bring animals on the train? And snails are covered in dirt; maybe they create a mess. Maybe they have to pay, maybe not. We don’t know. Or was it adopted to account for the fact that when you have animals in a basket, they take up a space on the train that could be used for a paying customer? Those are just two possible reasons. We just don’t know, when we look at the text of the rule taken in isolation, what it would be. We have to look at all the relevant material to come up with the best answer because there’s not clearly a right answer.
Justice Breyer: Have you ever been to France? How many have been to France? It’s lovely. Alright. What do you do if you happen to be sitting on the seat and you sat on some snails? It’s obvious you would eat them.
[laughter]
Andrew Carothers: Judge Newsom and Alana, I think you have a different take on this hypothetical. How do you go about it?
Alana Frederick: Let me just say, I love that you opened the book with this hypothetical. I think beginning anything — a book, lecture, class — with a hypothetical accomplishes exactly what you were seeking to do. It gets people thinking, and it gets them interested and engaged. I love it. We have certainly been interested in it and debating it at length, probably more so than necessary.
Judge Newsom: I’ve been the least productive judge in America for the last year, thanks to your hypotheticals.
[laughter]
Alana Frederick: I do think it’s just a great way to start this book and to demonstrate what it is that judges do, or appellate judges anyway. Do the snails have to pay? I would say our answer — on this limited record, anyway — is yes, they do.
Now, to Thomas’s point about needing to know more —
[laughter]
I know that might sound ridiculous. We drop a footnote in our review about this. I think that context definitely matters, even to a formalist, and especially to the extent — and we’re still working out this question for ourselves — but especially to the extent that it could play into ordinary meaning, of course, which is what textualism and originalism are all about. I do think that applying a formalist approach, if we had more context, we could actually reach a different conclusion. But based on the limited record that we have in front of us, I do think that the snails would require a ticket.
Judge Newsom: Yes, I would just say, if only all records were this clean, that would be a lovely thing. As Alana says, our view is that, given the limited record, if you take the ordinary understanding of the words as the watchword, there’s no basis for departing on this record from the ordinary understanding — the relatively clinical academic understanding — of the word “animal.”
To the considerations that Thomas raised in his remarks about the justification for the rule, and I don’t want to speak for her, but I think that what Alana and I would say is that in and of themselves, the justification for the rule, the purpose for the rule, the consequences of applying it — those don’t create exceptions, so to speak, to the ordinary meaning or understanding of the word. But they might actually — given a lot more context and understanding of the linguistic conventions of this time and this place — inform the ordinary meaning or understanding of that term.
We tend to think that, of course, we know what an animal is: It’s everything that’s not a vegetable or a mineral or whatever. But there might be a compelling basis to understand that term itself as signifying something else. And the sorts of considerations that Thomas is mentioning and that Justice Breyer mentions in the book — purposes, consequences, values, those sorts of things — wouldn’t give you a reason to depart from the ordinary understanding of the term, but they might, in fact, inform the ordinary understanding of that term in that community, at that time, in that place. We don’t rule out that possibility. I think our fundamental point is that we’re always going to be after the ordinary understanding of that term to all the hearers of that term, instead of acknowledging an ordinary understanding, and then saying, but in any event, something else external to the term. Does that make sense?
Andrew Carothers: Yes. You both have mentioned some terms here, formalism, textualism, originalism, ordinary meaning. I think that gets us into our next question well. Would you say that you have a theory or a method of interpretation? If so, how would you describe it?
Judge Newsom: Yes, I guess, since I’m holding the mic, I’ll start, and Alana can fill in the stuff that I leave out or fix the things that I say wrong.
Law students, you often hear these buzz phrases. You hear about textualism and originalism a lot. Alana and I think that there is a fairly friendly intramural debate about whether textualism and originalism are one and the same thing, or whether they are kind of similar but after different things.
We decided, essentially, to bracket that interesting side debate [in our review], and just say, well, whatever they are, they’re both manifestations of fundamentally the same overarching approach, which we call formalism, which is simply a method of interpretation that pays very close attention to language and is relatively agnostic to things like purposes, consequences, values, except to the extent, again, given the context, that they might weirdly, metaphysically, backfill the ordinary understanding of the term.
And so we tried to get away [from this debate]. I think sometimes originalism and textualism are such freighted terms that they can bog down a debate instead of enlightening it. We tried to set that aside, talk in terms of formalism. I think, at base, our fundamental approach is to say, let’s pay very close attention to what the ordinary understanding of this term would have been to the relevant community at the relevant time. Where did I mess up?
Alana Frederick: Nothing. That was perfect.
Judge Newsom: Justice Breyer is going to tell me about a lot that I messed up.
Alana Frederick: He’s going to tell you what you messed up. That’s right. The textualism versus originalism debate, we had to bracket frankly because we couldn’t agree. But we can at least agree on formalism. I think what you said is exactly right: [Formalism is] a text-focused approach that seeks to identify the ordinary meaning at the time of enactment.
Andrew Carothers: Justice Breyer and Thomas, I think this may be one of our points of disagreement here. I’ll turn it over to the two of you. Do you have a methodology, and, if so, how would you describe it?
Justice Breyer: No. [laughter] No. You think I’m kidding. [laughter] I don’t know, but I sat here in your seats. A. James Casner, I think I took his course; it was on the law of property. Great course. The judges, we respected, or were taught to respect — [Judge] Learned Hand, [Justices] Brandeis [and] Cardozo — yes, they had a method. You learn it like you learn how to be a, if you can do it, a swimmer. You learn it.
What can you take away from this? I’ll make two points here. One, I think there are probably 100 judges — no, 100 law professors, maybe 200, maybe 300 — who know the theory of these things better than me. I didn’t write a book on theory. I said they know the theory, but I’ve had some experience that they haven’t had. What I’ll do is I’ll give you examples.
I ultimately came to the law school. I don’t mean to praise the law school too much — it’ll go to their heads.
Those are the judges we had. We had [Professors H.L.A.] Hart and [Albert] Sacks. When I took Hart and Sacks and [Professor Lon] Fuller, I thought, that’s the end of the line. I don’t need any more.
How do I summarize this in a word? I’ll put it in a positive word. Why is it that you don’t call a judge or a lawyer often brilliant? Don’t do it. They won’t take it as a compliment. You want to say the law professor is brilliant? Good, they’ll like it. But what do you say about a judge?
What you say about a judge when you want to say something nice and you even hope it’s true? [You say that] the judge is sound. That’s the right word: sound. You don’t have to be a genius to be sound. What you have to do is understand the problem; you have to understand the values that underlie the problem; you have to understand what it is that the legislature is trying to achieve; you have to understand maybe a little bit of the history.
Maybe you have to know what some of the fights were like in Congress. Maybe you have to know how this was supposed to deal with some kind of mischief. That’s what they used to say in the 18th century: “mischief.” You know what they meant by the word mischief in the 18th century? I don’t know it all, but I do have a guess: The same thing we mean. That’s what I guess. I have to show you; I can’t tell you.
Then I say: “What did I write this whole God damn thing for?” The title of the French translation, which I should have kept. I had never thought of it. The publisher thought of this title. The Constitution of the United States, la lettre ou l’esprit: the letter or the spirit. I’m on the side of the spirit.
I hope you recorded what the judge said here because I listened pretty carefully, and I found a lot of things in what he said that I could agree with, depending on how he applies them. You see, I think I could — I think I could agree with a lot of things that [Chief Justice] Roberts says when [the Court] wrote their opinion in this recent case. What is it? A gun case about somebody who beats up the wife or something.
Andrew Carothers: Rahimi.
Justice Breyer: They all are now great textualists. I think six of them are or five of them or four, but they’ll say five. They only wrote five different opinions. If somebody has to write five opinions to explain what their theory is, they don’t know what it is. I’ll tell you that right now.
[laughter]
The best I can get out of textualism is four promises. I think this is why it’s so popular. Four promises. First, your work will be simple, judge — just read it. Second, it’ll be the same across the country. Everybody will just read. Most of the people across the country — we won’t talk about Los Angeles — they can read. Third, we promise you that Congress will love it. Why? Because they’ll know what’s going to happen to their bills. Fourth, don’t tell anyone, but we put double underlines on this one. Fourth, we’ll stop those judges from substituting what they think is good for the law.
Now I read those four promises; I like them. Not so bad. My only problem — and now this is why they might read the book past the snail example — is that they can’t keep them. I can’t find one of those things. Oh, it’s easy. Just read it. Not in our Court and not in his either. Yes. Read it.
We had a case [at the Supreme Court]. Most of you know that if you have a child and the child has a handicap, that school board has to have some special training or treatment or so forth. If you don’t like what they’re doing, you can bring a lawsuit under federal law. If you win, you get “costs” as well as a better education.
That was the case of the Supreme Court. It says “costs” if you win. She won; the mother won. Moreover, she paid $29,000 for an educational expert, and she said: “I’d like that, too.” Is that part of the cost?
We used to debate this, [Justice Scalia] and I, all the time. We debated it down in Lubbock in the football stadium. They must have thought it was a football game. It was great fun. We loved it. I said: “What do ‘costs’ mean?” The statute says “costs.” Does that include just the filing fee? Does it include the lawyer’s cost? Does it include the educational expert? Now, [Justice Scalia], you tell me what to do. I’m supposed to read it. Okay, I read it. It says “costs.” [laughter] I said: “Oh, I really read it. I mean carefully.” [laughter] Maybe read it two or three times. You’re like, “cost, cost, cost.” I just can’t get there!
I’d say to [Justice Scalia]: “You think these words in the Constitution, this originalism, what they meant?” I didn’t make any mean arguments. I’d say: “You know, when they wrote that Constitution, and even in the Fourteenth Amendment, all those things, there was someone missing from the political establishment. There was a certain group of people, maybe two groups, that didn’t seem to take part. Let’s guess who they were.”
George Washington, by the way, didn’t know about the Internet. [Justice Scalia] would say: “I knew that.” He’d say: “Yes, really, the problem with you, Stephen, it’s the problem of the two campers.” Do you know the two campers? You ever heard of that problem? One camper sees the other putting on his running shoes.
Andrew Carothers: Oh, yes.
Justice Breyer: Yes, of course you do. [laughter] He puts on his running shoes. He says: “What are you doing?” He says: “I’m not putting them on.” “Why?” He says: “There’s a bear in the camp. You can’t outrun a bear.” “Yes, but I can outrun you.” That’s his point. He says: “Stephen, you have a system so complicated, nobody can do it but you.”
[laughter]
I’d say: “Well, you have a point. It is complicated. It isn’t a set of rules. You do have to have experience. You do learn over time. You do get instincts. And it isn’t just what I learned at Lowell High School in San Francisco, but your background does play a role. But you try to keep it down because you want to follow the law. All those things are there. You may say that’s complex. But good judges have done it. They’ve tried and they’ve done it. So did Hart and Sacks, and they weren’t even judges. They got the thing right, mind you. The problem with your system, [Justice Scalia], is we’re going to end up with a Constitution that nobody wants.”
There you have it. Who’s right in that? We’ll know thirty years from now.
Andrew Carothers: Thomas, do you want to add anything to that?
Thomas Nielsen: Two quick follow-up points. The first thing I would say is that I think that we view method as not the best term to describe what judges do — if I’m describing Justice Breyer’s views correctly — because it assumes that you could apply the same set of inputs to every case. If you look at the examples in the book, it just doesn’t seem like that’s true. You raised the case about the word “costs,” which is Arlington Central School District Board of Education v. Murphy, for those who are interested. The statute says “costs,” but it doesn’t specify. You can look at context all you want, but that’s probably only going to provide a limited amount of insight.
So what do you do when the text runs out? Maybe the context runs out, where do you look? You have to look at a different set of inputs. I think there are different problems in different cases.
If you look at County of Maui v. Hawaii Wildlife Fund, which is talked about a lot in the book, a reading of the statute (the Clean Water Act) that adhered closely to the written word would’ve produced an extreme result — an almost absurd result, actually — either way that you read it under the two possible readings. What do you do at that point? The statute just would fundamentally break down. It would require a permit for every discharge of pollutants or for no discharge of pollutants. Both would blow up the statutory scheme. What do you do?
Each statute presents a different set of problems for a judge. It seems overly reductive to say: “Just look at text, and then if the text runs out, we’ll look at a little context and try to discern what the ordinary understanding of these terms are.” What is the ordinary understanding “costs”? It depends, and you just can’t know without more information.
The other thing I would say about the four promises that textualism makes, which I’m now trying to find here, is that one of the takeaways of this book is that textualism and originalism would often presume, as I said before, that there is a single “right answer” to difficult interpretive questions. And that’s often perhaps not the case. There is only a “best answer.” The real debate is over how do you discern and justify to the public who’s reading and bound by the court’s decisions in a rule of law system like ours what the best answer is and how you got there. I think that’s just a core difference in the way that these two groups approach reading statutes and reading the Constitution. Is it the best answer, or is it the right answer?
Alana Frederick: Can we respond to that?
Andrew Carothers: Yes. Absolutely.
Alana Frederick: I actually think we agree with you there, Thomas. We don’t think that there is a right answer either, but rather a best answer. I think that we’re in agreement there. But we think that formalism does a better job of determining that best answer.
As to your earlier comment about methodology or lack thereof, I guess, I think one of the biggest benefits for textualism is having a clearly defined methodology with a very small number of inputs for consideration because that is what makes it more objective and more likely to be consistent. That’s a benefit, as we see it.
Judge Newsom: I would just add maybe a couple of things. One, as Alana says, I think there is raging agreement here that in all likelihood and in most questions, there’s not going to be a platonically correct, right answer. There are going to be better and worse answers. Then the debate becomes, as I think Thomas says: “Better or worse by reference to what?”
That’s where the disagreement comes in. I think Alana, and I would say better or worse by reference to the ordinary understanding of the terms to the relevant community at the relevant time, full stop. Justice Breyer and Thomas might say better or worse by reference to that plus a bunch of other things.
I think one thing that I worry about is, in that “plus a bunch of other things,” that the antimethodology becomes so indeterminate as to invite the sort of decision-making that you don’t want your judges engaging in. One of the things we say in the review is that an all-things-considered model is very attractive because that’s how we approach, for the most part, most of the decisions that we make in our lives: We gather up as much information as we can possibly get to make the most informed decision that we can.
The difficulty is that when the decision-making process is that open ended, it seems attractive to you so long as the judges making that decision share your worldview. When they don’t, you’re not going to like it. You’re going to prefer judges who have bound themselves to some mast, something external to themselves.
I’m not trying to oversimplify because I think one thing that Justice Breyer said is absolutely, positively right. To the extent that there are formalists out there who are telling you: “Hey, this is simple, we found the judge hack (not the hack judge, but the judge hack), and the judge hack is: ‘This is easy. Just read the words. It’s so simple.’” Wrong.
Again, frankly, this is like Alana’s great insight. One of Alana’s great insights in the article, which is in one of the early footnotes that says: “Look, no one is suggesting that formalism is easy, just that it’s right. That it’s the right methodology.” I think at least when you’re interpreting statutes, it’s the methodology that the Constitution prescribes because there is only one thing that, as we say, runs the gauntlet: bicameralism and presentment to the President [for his] signature. There’s only one way for an idea to become a law. The only thing that runs that gauntlet are the words on the page. So the words on the page have to be the focus of the interpretive enterprise.
On the constitutional side, we confess in the review that it’s a little trickier. I actually think the case for constitutional formalism is pretty strong as well. I don’t think it’s so much a question of “Is this easy?” or “Is it preferable?” The question first and foremost is: “Is it right?” Then you have to see if you can make it work as best you can. But I don’t want to oversimplify. I don’t want to suggest that over there, there’s all this complexity, and over here, there’s all this simplicity. That’s not right.
Justice Breyer: That’s the point. You said it exactly. That’s why people who are textualists like being textualists. They think that — you think that — basically, when you read those words and stick the words in and maybe look at the words in other statutes, we will stick to it.
Because otherwise, what happens is what really happened. I was born in San Francisco, I grew up there, went to high school there. I went to Stanford. I’ve lived the life I’ve led; so have you. When I got to Washington, I thought: “Why doesn’t everybody agree with me all the time? I’m so reasonable.” Then I thought: “Well, gee.” Then I thought: “You’re in a big country. It’s a big country. There are 330 million people.”
It isn’t so terrible to have a Supreme Court of people who won’t all agree with me all the time and who do see things in different ways. Not such a terrible thing that you both take in the fact that there is 330 million people and also that there are different ways of going about things.
My mother used to say that. She used to say: “It’s a big country, and there isn’t any view so crazy that there isn’t somebody who doesn’t hold it in this country. And they all live in Los Angeles.”
[laughter]
And you try to follow “the law.” I think everyone here does. I think Learned Hand did; I think Hart and Sacks did. Yes, correct. We don’t want to substitute our own views. Can we escape from the life we’ve led? No. Can you totally escape? No. Can you jump out of your own skin? No. But you can try to keep it under control.
This last thing — I hope you’re recording this — is that [you say that] we don’t want the judge out there putting his own view of what’s good [into the law]; that you may think that’s okay as long as he’s doing what you think is good, and you may think it’s not so okay when he’s not doing what you think is good and he’s doing the opposite. So let’s do something neutral. And then I say: “Ah, neutral. Oh, I see. Now I see. It’s neutral. That’s the great thing about textualism. That’s the great thing about originalism. It’s neutral. It’s going to stay away from — see, that’s their main point — it’s going to stay away from the judge substituting what he thinks is good or she thinks is good for the law.”
I say: “Oh, that’s interesting.” I’m putting Mr. Textualist here. “Mr. Originalist,” I say: “I have a question for you. Just one question.” I say: “In Dobbs v. Jackson Women’s Health Organization, why did you overrule Roe v. Wade? Why? You’re a textualist. You’re an originalist. Why? Why did you do it? Did you do it because [Judge] Blackmun in Roe v. Wade did not follow textualism?”
Nobody’s going to answer me that. How many think yes? How many think no? Oh, come on.
[laughter]
Yes or no? Yes? No? Nobody thinks no? It has to be no! It has to be no. Of course, it has to be. There are very few textualist cases, if any, before the last twenty years. They all looked at the mischief that Congress was after. So of course, they’re not going to throw up for grabs, the whole U.S. Code. You may not have the same view about the U.S. Code.
In any case, look, the U.S. Code, we’re not throwing all of it out. There would be no law left in the United States. When you get in your law office, you say to your client: “You can’t do that. It’s against the law.” He’ll say: “Well, get it changed.” Again, that’s not the rule of law.
He’s not going to say that. What’s he going to say? Why is it overruled, Roe v. Wade? [The answer] was in the opinion of the overrulers. What was it? You don’t know that? What? Yes.
Audience member: Wrong from the start.
Justice Breyer: Wrong from the start is good, and there’s one word they put in there.
Audience member: Egregiously.
Justice Breyer: Thank you. That’s why they let him go to law school; he has all the answers. Egregiously wrong! Terribly wrong!
Oh, now I understand, Mr. Originalist. You’re worried I might decide what I think is good; you’re afraid I’ll substitute something subjective. When I look to see what is the right answer, I will put in something subjective; but you won’t put anything subjective when you decide if a case is so wrong you have to overrule it. I see.
Anyone who “sees” hasn’t been following what I’ve been saying. It’s the same thing, isn’t it? It’s the same thing; there are the same risks that those judges will [weigh] the things that they think are very bad when they decide what to overrule, as they just did.
That’s what they accuse me of doing, or [Justice] Brennan or somebody. Is it? No, I’m sorry. It’s six of one, half a dozen of the other. We’re not getting one step closer to “the law” when we follow the system of overturning whatever, than we are when we decide the cases under the same system that, let’s say, [Justice] Holmes used, not to put too fine a point upon it.
Andrew Carothers: Judge Newsom and Alana, would you like to respond? Or Thomas, would you like to add?
Thomas Nielsen: Oh yes.
Andrew Carothers: Yes, go ahead.
Thomas Nielsen: Just to say a few more words in that vein. I think the point that Judge Newsom and Alana raised about cabining discretion and the importance of one’s judicial approach closing the possibility or minimizing the risk that a judge will be able to substitute their view of what’s good for the view of the law is valuable. We’re all in agreement that that’s a very important end for a decision-making method, or if you don’t want to call it a method, an approach, to pursue. I think the question is, which approach does a better job of that?
I think, in theory, if you look at textualism and originalism, they have an appeal. They promise, as Justice Breyer said, that by limiting the extrinsic sources that the judge can look at, by limiting considerations of purposes and consequences and values and the like, you reduce the risk of subjectivity seeping in. And that if you look only at objective facts — the historical record, the dictionary definition, the background context, etc. — then that somehow reduces the likelihood. I think if you look at the opinions — if you look at an opinion like New York State Rifle & Pistol Ass’n, Inc. v. Bruen, or if you look at an opinion like District of Columbia v. Heller, or from the Court’s last term, Pulsifer v. United States — you see different accounts of what the relevant grammatical rules say and how they operate. You look at different accounts of what the historical record actually says and [what it means].
What’s the relevant takeaway? When you limit the other things that the judges can consider, you lead to these decisions that feel like they’re in equipoise with each other. If you look at Justice Breyer’s [dissenting] opinion in Bruen and Justice Thomas’s majority opinion, they both look at the same history, and they come up with different takeaways of what that history says. It’s the same with Justice Stevens’s [dissenting] opinion in Heller and Justice Scalia’s majority opinion, or the majority opinion in Pulsifer and the dissent.
When you limit the sources, then, you lead the judges to say: “We’re just doing objectivity.” But we’re coming to completely different outcomes. That seems to be discretion maximizing as opposed to discretion minimizing. And it has a rule of law component to it: I think it erodes the rule of law a little bit as well. Because when you’re hiding the actual things that judges consider when they reach a particular result, people are less in the know about what leads the court to make the decision that it makes.
You’re saying: “We only looked at the history, and this is what we came up with.” Really? It feels, if the history is truly in equipoise or is near equipoise, that that’s not actually what’s going on. There’s something else going on.
I think the advantage of a more all-things-considered approach, at least in the hands of a disciplined judge, is that you’re forcing them to list out everything that they looked at: Text, ambiguous. History, kind of ambiguous. Consequences, values, purposes, whatever. Even if you don’t agree with the judge’s appraisal of those particular things, that opinion is out there. It’s in the public. You’re bound by it. You can read it and decide for yourself whether you think it’s convincing, and that in and of itself promotes the rule of law.
Justice Breyer: No, it’s not quite everything. It’s not the kitchen sink. Purposes are the number one thing out there. Consequences are probably number two. The values, which seep out of the Constitution and other things in Congress are probably number three. I just wanted to say something because I shouldn’t laugh [at the mention of Bruen].
[laughter]
The reason I did — look, I wrote a dissent. I said: “How are we going to go look at the history and find this out?” We’re supposed to look into analogies in history. I had been reading a judge in England called [Lord] Sumption. He’s a very bright guy. He was a history professor before. He wrote a book on the Hundred Years’ War. It’s five volumes, 250 pages in each. It’s the Hundred Years’ War minute by minute. I knew some of this. So I said: “What is a halberd? And what is a stillader? And by the way, is Greek fire, which they used to throw over the walls, you see, and set the city on fire, is that the founder of the artillery, or no? Why am I not allowed to look at the fact of X thousand policemen being killed with guns every year, and Y thousand spouses and Z thousand people? Why am I not allowed to look at that?” That’s pretty relevant, it seems to me.
Are we not at least allowed? What are we supposed to do? I wrote to [Justice Scalia] on this one because a second case [following Heller] came along [— McDonald v. City of Chicago —] and by that time, some people who called themselves scholars of language or linguistic scholars said: “We have looked up the use of the word ‘bear arms’ in the 18th century and we discovered that between 1720 and 1780, there were 42,000 uses and 41,863 had to do with the militia and not the right to keep guns.” And so I said: “Look at that [Justice Scalia], we’d better overrule Heller.”
You see the point. It’s not that anybody has a monopoly on what’s clear, what’s obvious, what’s going to keep the judge’s discretion under control.
Andrew Carothers: Judge Newsom and Alana, I’ll give you a chance to respond. I would also be interested to hear your thoughts on this question of indeterminacy. What do you make of either a text or historical record that doesn’t on its face produce a clear answer?
Judge Newsom: That’s where I was going to go because, again, I think we’ve got a lot of agreement on the panel about the importance of constraining judicial discretion. I think we agree, no one wants judges completely unhinged, to do whatever they think is good. No one thinks that’s the rule of law.
What approach, what methodology best guards against that worst case scenario? For my money, I think that some version of formalism, definitively — and I don’t know that I can be persuaded otherwise — more powerfully constrains judicial discretion than an all-things-considered approach. I do —
Justice Breyer: Is that the worst? The worst thing we could do is to depart [from solely textual and historical considerations]? Some bad things can happen. Go back to [the second] Justice Harlan. What was he thinking? What was he trying to do? [Was his approach] unhinged or foreseeing, looking to the future? You can’t escape from the fact that the courts — you too and me too — we are in a system. That system is not a court system. That system shouldn’t be called a system. And boy, you feel this after forty years — it’s called the United States of America. It’s called United States of America based on 330 million people and based on certain words in the Constitution. Those words stand for certain values. They stand for values that have lasted a long time.
What did the Founders think? Read [Professor Jonathan] Gienapp, who is a historian at Stanford who has written a good book on this [titled Against Constitutional Originalism]. What do they think? That over time — in changing circumstances, in changing values, in changing difficulties, in changing challenges — we have to prove that this experiment in a democratically founded country, with protection of certain basic rights, with degrees of equality, and with a rule of law, can work.
So be aware of getting too far in the direction that the worst thing in the world is for the judge to foresee in terms of those general things. You will get different views, that’s true. But one thing you feel in the courts (and probably in Congress) is that you’re guiding, well, you’re not guiding, you don’t have a last word, but you’re trying to keep true to those very basic things that are there in that document. It’s corny or it used to be corny, because it was so true.
Of course, I agree with what he says. I don’t want judges — go read — you want to read something interesting? Go read Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics. There are [multiple] opinions in the original Bivens case. One is [Justice] Brennan’s, and one is the second [Justice] Harlan’s. I’ve read both several times, and I think the second [Justice] Harlan’s is a lot better. But they’re both driving toward a certain conclusion, and they want that conclusion to be that when somebody violates the Fourth Amendment, for example, and he’s a government official, that we can give some compensation to the person that has suffered harm.
What I say is so corny, but it’s true. What worries me about finding — I used to say this to [Judge] Tauro, who [was] across the hall when he first served as a district judge: “The thing wrong with Judge X, is not that he has a theory that’s wrong, it’s that he has a theory.” That’s a little facetious, but it’s a complicated place. I’m back to [Michel de] Montaigne, [who made the point that] life is so complicated — you will never find a set of rules, a single set of laws, that would be able to deal satisfactorily with all the problems that people have or will have.
Judge Newsom: Let me say just one thing, and then I’ll let Alana clean up. I think one disagreement, or one point of disagreement here, is about the nature of the judicial role. No one disagrees that this is a complicated place, it’s a big country, it’s a pluralistic country. Fundamentally, I think that in a country as sprawling, complicated, and pluralistic as ours, you want the representative branches making decisions about how changing social mores will be met.
Judges may have some marginal role in that, but I don’t think that is fundamentally their job. Hence, I think you want to cabin judicial discretion as best you can. People will say: “Isn’t being a formalist an impossible thing?” I say it is indeed impossible if you don’t believe in the separation of powers and you don’t believe in democracy.
If you believe in the separation of powers and democracy — and I get it, this is a hard case to make right now, when democracy feels as broken as it has ever been — but if you believe in your core that democracy is capable of a comeback, capable of thriving under the right conditions, then I think the judges ought to facilitate that comeback. If the judges just simply decide to take over and make things work as best they can, then I worry that we find ourselves in a cycle whereby Congress hasn’t done anything meaningful, so judges will pick up the slack, and so Congress now has a lesser incentive to do anything meaningful, and the judges will continue to pick up the slack, and here we go.
I think at some point we need to reverse that cycle such that the judges say: “Boy, there may be some short-term pain here, but we’ve got to cut this off and force the democratic actors to reengage.” And I’m not suggesting that the judges are the sole cause of this problem, but they are contributing to the problem. But I worry about them continuing to save Congress from itself rather than forcing Congress to do the hard challenge of legislating. That is a concern I have about the judicial role and its interaction with democracy.
Alana Frederick: I just want to briefly respond to something that Thomas said earlier, and then I think we are at time. Thomas, you gave a list of case examples that, in your mind, demonstrate that formalism does not fulfill all the promises that we claim that it will. To that I say — without speaking to any particular example — that there are certainly sloppy examples of formalism. I think that you could say the same with respect to any interpretive approach. You can [always] pick out sloppy examples. But I think that doesn’t really say anything about the methodology when applied correctly.
I know Judge Newsom could speak to this in more detail if we have more time. But I think in our chambers we honestly try to practice what we preach. And if you look at the decisions coming out of our chambers, I think that you would find that formalism, though not perfect, truly does fulfill the promises that we claim.
Judge Newsom: We certainly have fewer examples by virtue of — I won’t say Justice Breyer’s age — but his wisdom and maturity. He has had more time on the bench than me, so I don’t have nearly the reservoir of examples that Justice Breyer does. But even in seven-and-a-half years, one of the things we tried to write into the review was to say, don’t just listen to what we say, please watch what we do. [And we give] some examples where we have tried our level best to apply the methodologies that we’re talking about. And look at the goofball, scattershot result pattern. There is no pattern. Some of these are going to code conservative, some are going to code liberal — I’m sure to the great disappointment of many.
I am trying my level best to practice what I preach, as Alana says, and to operationalize this methodology. Sometimes that causes it [to be] “Newsom and the Liberals.” That’s because Newsom has decided that the law requires him to do this kind of weird thing over here. I think the constraint is real; that is just my lived experience, that it is real.
I [also] genuinely believe that the judicial role is a relatively small role in this very complicated country. I think that may be, to some extent, the root of some of the disagreement. I think there’s a lot of agreement on the panel, but the root of the disagreement that remains, I think may just be about the judicial role.
Andrew Carothers: I think that’s a great point to end our conversation here on. I know some people have to get up and take off to go to class, but we do probably have time for one quick question.
Judge Newsom: Good. No pressure.
Audience Member: You talked about, I think, how context or purpose or these other things can be used to backfill ordinary meaning. When you’re looking at sources and doing the inquiry of deciding what it is the text means, how do you think about those things influencing your opinion of what the text means?
Judge Newsom: I’ll say a little something and then I’ll let Alana pick it up. Again, there is this massive footnote in the review that brackets this question and its intention, because I think there is a risk that there is an oversimplification of textualism, originalism, formalism, etcetera. As Justice Breyer said: “Just read it.” It’s not that simple.
If what we think we are after is the ordinary understanding of the words on the page at the time to the relevant community, then it’s not always as simple as just breaking out the dictionary, even a contemporary dictionary, and smacking it down onto the page. Sometimes the sorts of things that Justice Breyer and Thomas very eloquently talk about in the book — the purposes, consequences, values — may have so pervaded that cultural context that they actually (and this gets really meta really quick, and we’re still trying to track this down) [change the ordinary meaning]. At some level, we think it is genuinely possible that those sorts of considerations might rewire the brain, so to speak, to understand the word in a different way than the dictionary, even a dictionary at the time, might have suggested it would be understood.
Now tell me what I’ve gotten wrong, because this is really complicated.
Alana Frederick: No, no. That’s right. I think that’s such a great question. This came up in the context of the snail example, again. I was polling all these people on the hypo without giving them much information. The response [to the idea that snails would require a ticket to ride the train] was often: “Oh, that’s absurd.” And yet, here we are as formalists, [reaching a different conclusion by] looking at the dictionary definition of the word “animal.”
I was trying to figure out how to reconcile this. When we first started talking it through, I think there was a concern that: “Oh, aren’t these people just thinking of the consequences and the values and all these things that Justice Breyer has articulated [that formalists are supposed to ignore].” And I would try to ask the question in such a way that those things were not even clear. Yet, I was still often getting that answer.
To me, it seemed that these things [— purposes, consequences, values, etc. —] are subliminally baked into the ordinary understanding that a person might have, even if they’re not aware exactly what the value is of a rule or the purpose behind the statute. But they know that, in this particular context, that it seems to be absurd to them. So, as to your real question of how to make that determination and where to draw the lines, I think we’re still working that out. I’ll let you know we have an answer.
Judge Newsom: In fact — and I’m not trying to just, like, create a new taxonomy here — there might be a difference between ordinary meaning and ordinary understanding.
This is half baked, and I’m thinking out loud, but our sense is that in a society like ours, if you want to trace it back through notice and due process even to the social contract and the consent of the governed, that surely the focus has got to be on the hearer or the reader of these words, and not on the speaker of these words because it’s real people in the real world whose natural freedom, so to speak, is being curtailed by operation of these coercive laws.
So surely, their understanding is what should be paramount. That understanding in the context of the moment, at the time of these people may be different from what we think of as the clinical meaning, that you might get from a contemporary dictionary definition.
That seems weird, and it does seem metaphysical, but we just don’t want to foreclose the possibility that those two things might be different. And this is back to the point of agreement, that the sorts of things like purposes, consequences, and values may be informing, if not meaning, maybe understanding.
Alana Frederick: I think that’s a great clarification. I think there is —
Justice Breyer: First, you’re going to have to solve a lot of the same problems in whatever system you use. Good luck! Two: When you’re solving all these problems — I hope you do because there are a lot of people who want to follow what you said, and you’d better if you want to end up with 120 mosquitoes in a basket in a train to Paris.
Then the third thing is — wait, serious point. Who was listening when they wrote the Fourteenth Amendment? Who was that relevant community? It seems to me that women weren’t there. It seems to me probably there were a lot of [former] slaves that weren’t there. Maybe there were some; I don’t know. But there weren’t women. And it’s pretty different when the women weren’t there when you’re considering whether there is a basic right to an abortion.
I’ll tell you something, maybe I shouldn’t — Joanna [Breyer] is here. I went around for the next few months [after our kids were born], and kept saying: “Boom, we had the baby.” And she’d say: “You didn’t actually have the baby.”
It does make a difference. Be careful. Just tying it down to the people who are in the group they are at that time considering? No, please. Can’t do it. Too big a country, too many changes, and too many of those changes for this system — though not in general — are in the right direction.
Andrew Carothers: Alright. I think we’ll leave it there. Please join me in giving a round of applause to our speakers.
[Applause]