Justice Stephen Breyer on Power, Precedent, and the Future of American Law

The interview below was conducted in October 2025. It has been edited for brevity and clarity.

Harvard Undergraduate Law Review (HULR): Thank you so much Justice Breyer for joining us. My first question is focused on your judicial philosophy. In your 2005 book Active Liberty, you argued that the Constitution should be interpreted in order to promote active liberty, which is the right for citizens to participate in democracy, and you added to this theory in your book on pragmatism, saying that the judges should focus on the consequence of their decision and the pragmatic approach to the law, instead of staying strictly focused on the words and the original meaning. I hope that’s a fair summary, and I promise the question is coming. But first, briefly, here is what your critics say about this philosophy: first is that it gives judges broad discretion to change the law, some would perhaps say in a biased way — leading to an activist court. The second builds on this and says the framers created a clear system for changing the Constitution, and it’s through amendments, not unelected judges. And the last critique would be that the power to write laws is vested in the Congress, which is directly elected by the people, and thus they might say your philosophy is undemocratic. So my first question is, what is your response to these critiques and what are your comments on your philosophy?

Justice Stephen Breyer (JSB): I simply follow a traditional way of interpreting statutes and the Constitution’s words. I learned at the Harvard Law School how Holmes, Brandeis, Cardozo, and English judges interpreted statutes. Go look at some of the history which I’ve read. They all do the same thing. What you use to interpret the meaning, or, let’s say, the scope, that’s a better word. Suppose you have a statute which says policeman. How do you know that doesn’t refer to German policemen? It doesn’t. It means American policemen, you look at the context. In other instances, how do you know where there is a statute which says that a woman who wins a suit against a school board because they have not been properly educating her handicapped child gets her costs. What does cost mean? Does it mean the cost of the educational expert as well as the lawyers, or just the lawyers, or just the filing fees? Well, the people who want to just look at the text say, ‘Okay, I'll look at it. You know what it says? Costs.’ That’s what it says. I'll look at it three times. Cost. Cost. Cost. It doesn’t tell me. And so very often, what the colonists said in the 18th century, and what they said in England is where it’s relevant, and the language isn't clear and doesn't tell you. And that’s very often in the Supreme Court, because we only take cases where the lower courts have come to different conclusions about the application of the same words. So if that’s why we take the case, it certainly won’t be clear. They are good judges too. Portalis said this in France. He said, ‘When the text is clear, you follow the text, but the text is never clear.’ That’s why we have a case. So in an appropriate case, we might look at the purpose. And when they put these words just what I said in the colonies, they tended to say, or in the just after we became a country, let’s look at the mischief that Congress was trying to prevent with the statute. In other words, let’s look at its purpose, and sometimes you will want to look at the consequences and see if they make sense. Did they do that in the 18th century? They did that. In fact, you have a statute and it uses certain words, and the question is, can you interpret it this way or that way? One way that you interpret it, it will mean that they have 10,000 rule making proceedings that they have to go through. They’ll probably finish that in the year 3087 and the other way they won’t have to. All right, which makes more sense? Do you look at that? Of course, you look at that. Would you look at the values in the Constitution, one of which is free speech, and one of which is democracy, and one of which is equality and so forth? And will you interpret a statute in a way that departs from those values, destroys them? Of course not. And so I say, I have very good precedent, it makes sense. You [also] have to look at what the purpose is. That’s why I say look at legislative history, which is apparently very controversial. Antonin Scalia and I used to debate these matters in law school audiences. But if you want to be a bad judge and substitute your views for the law, you can be a bad judge, whatever theory you use.

Look at the case about abortion. Go look at that. You know what happened in that case? They overturned Roe v. Wade and Planned Parenthood v. Casey. So I’ll go to the people who were not dissenting, I dissented, and I would say, ‘why did you choose those cases to overturn? Did you overturn those cases because they didn’t use your theory of originalism? Is that why?’ No, they’re not going to say that because they know hardly any cases decided, not recently, but volumes of the Supreme Court reports that didn’t use originalism or textualism — volumes! Are they going to overturn all those cases? If they do, there will be no law. It will be chaos. So of course, they’re going to say no to that. I will say, ‘Well, then why did you overturn Roe v Wade?’ And the answer to that will be, ‘because, in our view, it was egregiously wrong.’ Oh, I see egregiously wrong. In your view, it was egregiously wrong. But in the views of some other people. Casey was egregiously right! So what you say is egregiously wrong, but you say that your system does not give you the power to do what you like. I see you’re using the words egregiously wrong. Those are the standards, but that doesn’t give you the power to do what you want. You have to see is it really egregiously wrong, but my system to look to what the — not my system, but Holmes’s system — to go and look and see what Congress intended by these words, what were they trying to achieve, to look and see what the consequences will be, to look and see whether they further or totally disrupt the values that are written into this document of the framers.

HULR: On the note of pragmatism versus originalism, those have seemed to become the two dominant schools of constitutional interpretation today. But I’m curious about another one that Adrian Vermeule, one of your colleagues at Harvard Law School, is trying to promote, called Common Good Constitutionalism, which proposes that courts should explicitly interpret the text of constitution and statutes in a way that promotes the common good, even at the expense of individual liberty. And he thinks originalism outlived its usefulness, and he thinks this needs to be replaced with his theory. So I’m curious about your thoughts on this.

JSB: I don't know. Are you hearing a single theory like that? The cases are different, one from the other. Why do you think people are appointed to the Supreme Court of a rather advanced age? Because you have to have some experience. I did have 14 years as a judge. It gives you some idea of what you’ll look to in this particular statute. But I’m not sure what common good is. We were just talking at lunch with some students. They wanted to know what happens if an interpretation, a literal interpretation, produces a likelihood that a person who committed a crime would be convicted even if he did the right thing. For example, what if what [the crime] he did was trying to save his wife from a terrible disease? There are a lot of things in the law that do help you achieve [common good]. The prosecutor may choose not to prosecute if what you did wasn’t really morally wrong. The jury may acquit. The judge may sentence you to a lesser sentence. So there are lots of things in the law that try to align what the result will be in a particular case with what is morally correct, or at least avoid that which is morally bad.

HULR: To follow up on this, there’s always a debate in the United States about individualism versus civic republicanism. Should you be more focused on your own liberties or serving the common good? And a few weeks ago, at a lecture you gave at Harvard Law School, you said that a judge should be thinking about what decision will best let 340 million Americans live in peace and prosper together, which seems like a version of common good. Would you say it is?

JSB: Well, that’s what I learned when I was a student here. If you step back and you look at law as a whole, which you rarely do, and you don’t really know the answer to it, but you think, why do we have this institution? And what Henry Hart Jr. and Albert Sacks said, and I certainly thought it was correct, is that law in general is generally supposed to try to help the 340 million in this country, of every possible view, every possible race, religion, national origin, live together. We had one civil war, I confess, and segregation and reconstruction and all kinds of things going on like this and that, but we’re still together, and that’s an important thing.

Where that comes up more often than in a lot of other places is in the religion clause. The people who wrote this were awfully intelligent, awfully clever. The religion clause in the First Amendment says ‘Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof.’ And go read Lord Radcliffe’s lecture at Northwestern Law School called The Law and Its Compass. He says that these religion clauses are trying to, above all, stay as far as possible from the wars of religion and the 30 Years’ War and what was going on in the 16th and 17th centuries. We don’t want that. We want people of different religions. And it used to be that there were only three major religions here. There was Catholicism, Protestantism, and Judaism. But after the immigrations in the Civil War, until now, when there was huge immigration, you have about 80 different religions. Well, when people have a religion, they believe it very strongly, if they’re true believers in that religion, you don’t want to create a situation where they create chaos and where they’re fighting each other, that’s a major thing. So let’s allow these people to live together.

HULR: Next, I want to move on to a question about administrative law, which is an area of your expertise. This is an area of interesting development recently, because, of course, there was the Chevron deference, which gave agencies the authority of statute interpretation. But in 2022, in West Virginia v. Environmental Protection Agency, Chief Justice Roberts formally established the major questions doctrine, which undermined Chevron, and then officially, two years later, Loper Bright struck down the Chevron deference. I’m curious what you think about these cases, because Loper Bright was decided when you were not on the court, though major questions was decided when you were still. So I’m curious what your thoughts are on the Chevron deference and the new legal regime we have around administrative law now.

JSB: Well, is it new? I mean, administrative law used to be a third or second year course, and nobody took it. Now it’s a big deal! I don't know why. Administrative law was created mostly at Harvard, a lot in the 1930s, when we went from a country that didn’t give too much power to the federal government to Franklin Roosevelt and the Democrats, who wanted to move power to agencies into the federal government. Well, one question among many that would arise once they did that, is that they do something, and there are some people who are affected, who don't like it, so they bring a lawsuit. When they bring the lawsuit, these people say, in a court, ‘you did not have the power to do that. You didn’t have the legal power to do it. You point to a statute which you think gives you that power, but it doesn’t. That statute says nothing about it.’ Now, how does the judge know whether the statute does or does not? Well, that’s the legal question
in the case.

Louis Jaffe, right here at this law school, Clark Bice, another one at this law school, Walter Gellhorn, at Columbia, and Nathanson, who was at Northwestern, they made administrative law up. They created it. It was necessary. And what Louis says in his treatise is, how do we know if this statute, which says nothing but implicitly delegates the power to do this thing to these people. How do we know? Well, we have to use our judgment, but we also have to give the agency a little leeway. Why? Because (1) They know something about it. Today, we’re hard pressed to call them experts, but we can call them at least people who know something about it. It’s their daily job. (2) They have to administer the statute, and they know what helps them in general, administer the law or the statute better or worse. (3) They may or may not have the expertise that this action and this statute are related to. Suppose the statute that they’re complaining about delegates power to the Attorney General to decide a matter of drug law. The Attorney General doesn’t know anything about it, so let’s see who it’s delegated to. (4) Have they had this for a long time? Is it something people have gotten used to? (5) When they did interpretation of the statute, did they, in fact, follow a rule making procedure or something where they took people’s views into account? (6) Have they changed their views fairly recently about what the statute means? All those things might or might not be relevant in deciding whether the statute that we’re pointing to gave them a degree of leeway in deciding what it meant.

I mean, did that statute, or didn't that statute give them the power to do this thing? And they have a little leeway in answering that. What do we look to say whether they have leeway on that? It depends on the case. But there are a lot of things. The first case would be NLRB v. Hearst, which said that a statute which uses the word ‘employee,’ covers a newsboy. Very old case decided by the Supreme Court. Leeway to the agency. Why leeway? It’s a minor question. It is within the area of their expertise. It helps them administer or not administer. It helps them administer the statute. But in the next case, it’s the same question, but it’s not a newsboy, it’s a foreman. Now, a foreman is a very big deal. You start putting foreman into the word employee in that statute, all kinds of stuff is going to happen because they’re in every company. Well, that’s a big-deal question. Probably Congress wanted to preserve that question for itself. We’re not sure. Sometimes you would, sometimes you wouldn’t. It depends on the case. So when Chief Justice Roberts comes in and puts in the major question doctrine, all he’s done is taken something that has been around for a long time and put capital letters around it. I mean, I sure used it long ago! But then Chevron came along, and the lower courts took it as an instruction to always defer to the agency. It didn’t say that. It didn’t mean that. It was a mistake. So I might have been on the Loper Bright side, but I don't know, I wasn’t there. Now will Loper Bright be taken as an instruction by the lower courts never to defer to the agency? God, I hope not. Will it be read as it might be read as saying, let’s go back to where we were before we had Chevron. That wouldn’t be so terrible. So that’s where I am.

And as far as the major question doctrine, it’s not a rule. Scalia liked Chevron for a long time, because it seemed like an absolute rule, and he loves absolute rules. I do not. I think life is a mess. So when we used to debate, I would say, ‘But of course you change. You don’t change values, but you change how they apply, how these words apply in the First Amendment, for example, over time. George Washington didn’t know about the internet.’ And so Scalia says, ‘I know that. My objection to you, Stephen, is not whether George Washington knew about the internet or didn't know about it. My objection is that what you do is too complicated.’ And I would say, ‘I see that objection, and I don’t know the alternative, because if they choose what you want to do, which is have these rules that have nothing to do with the mischief or nothing to do with the purpose, nothing to do with the consequence, we’re going to have a Constitution no one wants.’

HULR: On the topic of administrative and executive power, there’s an interesting kind of tension there, because on one hand you have the conservative bloc reigning in the administrative state in these cases, but then on the other hand, they are, for the highest level of the executive, employing the unitary executive theory, allowing the president to do mass firings, and even granting presidential immunity to the president. So what do you make of the tension between the court’s approach to the executive branch? Because at the highest level, it seems like they’re happy to grant broad powers, but at the lower administrative level, they seem to want to rein them in.

JSB: It's too abstract a question for me to know. For the immunity case, does it give the president immunity? Yes, in some areas. What it says is, if he is being prosecuted for something that is involved with his presidential powers, and those are presidential powers where Congress has no control over them, he has immunity. As to the others, what the majority says is, we’re not decided. Then they say there’s a presumption of immunity. Then they cite two cases, one of which was called Nixon v. Fitzgerald, and that gave the president immunity from a woman who was suing because he said the president had done something with the CIA that led to the death of her husband, and in that the Court said he has immunity. Then they had another case, and it was the Watergate special prosecutor wanting the tapes of the presidential conversations. They said the president doesn’t have immunity. So they cited both those cases in the opinion. Okay, so I say there’s a lot of language in there that sounds like, immunity, immunity, immunity. And I look at the holdings, I'm not sure.

HULR: A more specific question, I should be more specific, is what do you make of the unitary executive theory?

JSB: Well, of course, it can’t be total —

HULR: Some would say it can be total because of the Vesting Clause.

JSB: But what does [the Vesting Clause] really mean? ‘The Executive power is vested in the president.’ Does that mean the president can fire a person whom he’s hired, given an absolute, unbiased determination where he adjudicates a case like an administrative law judge? You mean the president doesn't have the power to appoint someone who has tenure, so that he won’t be biased in his decision that he makes for the agency. If you look at the case law, Taft and Myers said the president can fire but cannot fire people if Congress gives them tenure. Then we get to Humphrey’s Executor. And in Humphrey’s Executor, they say the FTC has adjudicated power. They call it quasi-adjudicated power. Is it the end of the earth if they say the president can fire an FTC Commissioner? Sure it is! And was that supposed to apply to the Fed? What they’ve said so far, in one of their opinions, is that [the Fed] has to be independent. We’ll see what they say.

HULR: Now to move in a different direction to substantive due process and the Dobbs decision, which was during your last year on the bench and a case you dissented in. You briefly touched on this earlier, but in the dissent, you and two of your colleagues warned that the majority’s conclusion that a fundamental right must be, ‘deeply rooted in this nation’s history and tradition’ could be applied to other rights such as contraception, same-sex intimacy, and even same-sex marriage. In short, if the right to abortion can be taken away for not being historically grounded, so could other unenumerated rights. And we are starting to see this play out, because the Supreme Court was just asked officially to overturn Obergefell v. Hodges. And to make things more interesting, Justice Thomas recently undermined the principle of stare decisis, saying that the precedent is not the gospel. So my question, kind of bringing this all into one question, is, do you think that Dobbs opens the door for other precedent such as Obergefell to be overturned?

JSB: Well you better ask somebody who was in favor of Dobbs, I dissented, right? And so, I mean, sometimes cases are overturned, and there are even cases that explain when one might be overturned. It was certainly right that Plessy was overturned by Brown.

HULR: Can you explain what substantive due process is?

JSB: Substantive due process is an argument that is long gone. The Due Process Clause says ‘Nor shall any state deprive any person of life, liberty or property without due process of law.’ There’s some people who say that [the Due Process Clause] means they can deprive them of anything, but they just have to have to have process when they do it. And it’s the other clause, the Privileges and Immunities Clause, that protects people’s rights, like free speech and so forth. However, that had been debated for years and years and years, and Justice Stevens wrote an opinion that I agree with, saying that the ‘liberty’ in the Due Process Clause includes most of the first 10 amendments, now applied to the States through the 14th.

HULR: But of course, the right to abortion is not one of those in the Bill of Rights.

JSB: You know who has children and goes through pregnancy? I'll tell you, it isn’t men. And so when you prevent the woman from deciding for herself, you don’t prevent the man, and that is a denial of equal protection. Why is it a violation? Because it’s how they’re going to lead their lives. And there are plenty of cases that say that the word ‘liberty’ extends beyond what’s written down in the first 10 amendments. There’s a case which says that it includes the right to teach your child German. They said this during World War One, when German was very unpopular, they said it is a right. There are a bunch of cases where they find basic rights. Arthur Goldberg used to say, suppose they pass a law which says all women have to live west of the Mississippi and all men east. You think that law is going to satisfy the Constitution, of course.

HULR: So to tie this back to your philosophy, I guess what you’re saying is, in the absence of words, you’re going to focus —

JSB: Not in the absence of words, there are always words.

HULR: Well, in the Constitution, there is an absence of commentary on abortion, which would make conservatives say that it’s up to the states.

JSB: There’s an absence of words of having women live west of the Mississippi and men live east, or whatever. There happens to be a lot of awful things that the government might do. So you have that word ‘liberty’ there, and the question is, what is the content of that word
‘liberty’? And there’s a lot that goes into that.

HULR: My last topic is on the state of the judiciary today. So first, we just had Trump v. CASA last summer, which struck down the use of universal injunctions by lower courts. Some saw this as stripping the lower courts of some of its power to check the president. Other commentary says that this decision was a consolidation of judicial power up to the Supreme Court.

JSB: If you go 20 years ago and earlier, it’s very rare. I mean, Chuck, my brother, is a district court judge in San Francisco, and he would normally think that if you have some people in front of you that are from your district, you get a remedy that applies to that district. And I heard William Griswold once talk about this. He was dean of this law school. He was Solicitor General. He said he liked it very much. He wanted the district courts to have a ruling for that district. Why? Because he wanted to go to a different district and get the opposite holding. And then when he had two opposite holdings, he was sure he could get the Supreme Court to take it and resolve the issue. And so it was rare, not too often, that the judge went beyond the scope of their district. Now sometimes you did because you couldn’t get complete relief, and that left a lot of room for larger orders.

HULR: But between taking that power away from lower courts and also expanding the use of the emergency docket, it does beg the question, do you think we have entered an era of the so-called imperial Supreme Court?

JSB: Nobody knows the answer to that question, but, for the two examples that you have, it’s not a very politically-oriented decision to say that normally you can’t have relief that goes beyond relieving the people who win the case in front of you. Okay, that’s not an abnormal thing. And as far as the emergency docket is concerned, every court has an emergency docket. We have one on the First Circuit. It’s for people who say that the lower court decision, even the preliminary decision, is wrong and hurts us more than the opposite would hurt the other side. And I had loads of those things. If one comes to me from the First Circuit, I just deny. Deny. If I think it presents a real issue, I’ll refer it to the court, and at that point, the whole court will decide, and Roberts will do the procedure. But what’s happened is that the executive branch is now presenting some issues that are big deal issues. I mean, does the president have the power to shut off Congress, as he might be doing in some of these cases where there’s a statute and he says, ‘I don't have to follow that’ or something like that. They might be a hard issue that comes in. They’ve got to decide preliminary. While they decide for four or five months or four or five years, sometimes, what’s the status quo then? So they have to decide that, and they will decide it. Now, should they write something in that preliminary decision? Yes, probably they should. But if Robert starts writing an explanation, maybe five people write their explanations. And if that happens, they’re going to be wedded into their position. And when the case comes up, as it will, and full briefing, oral argument, discussion, you shouldn’t be too wedded when that happens. So he might hesitate to write for that kind of a reason. So, in my own view, I think that’s a tough matter.

HULR: The last question is a simple, short question for you. Why should people have faith and trust in the judiciary and in the Supreme Court?

JSB: The person who asked that question to me, I think very well, was the president of the Ghana Supreme Court. She came to my office and said to me, ‘Why do people do what you say?’ That’s a very good question. It takes a lot of time. Andrew Jackson probably didn’t want to follow the court. But George Bush, when he lost the Guantanamo cases, said, ‘I don't agree with their decision, but I’ll follow it.’ Al Gore, when he lost Bush v. Gore, said, ‘don’t trash the court.’ Despite the fact that it was an important case that many people disagreed with and thought it was wrong — I thought it was wrong — despite that, there were no riots, there were no paving stones being thrown. I mean, that shows that they’ve come to accept, in the United States, after a lot of travail, a rule of law. The rule of law is not just following the case you like. The rule of law is when you follow the cases you don’t like.

HULR: Thank you so much, Justice Breyer.