>>> NOW ALL OVER THE WORLD, WOMEN-LED SOCIAL AND PEACE MOVEMENTS ARE ON THE RISE, WHILE AT THE SAME TIME, THE FIGHT FOR WOMEN'S FUNDAMENTAL RIGHTS CONTINUES, INCLUDING IN THE STATE OF FLORIDA.

WHICH HAS CLEARED THE WAY FOR THE STATE'S SIX-WEEK ABORTION BAN TO TAKE EFFECT.

BUT IN A SEPARATE RULING, ITS SUPREME COURT JUSTICES HAVE ALLOWED THE ISSUE TO BE PUT TO VOTERS IN NOVEMBER FOR A PROPOSED CONSTITUTIONAL AMENDMENT.

MEANWHILE, IN THE FIRST ABORTION-RELATED CASE SINCE OVERTURNING ROE V. WADE, THE U.S. SUPREME COURT APPEARS SKEPTICAL OF A NATIONWIDE BAN ON THE DRUG THAT'S USED FOR MEDICAL ABORTIONS.

INTERPRETING THE CONSTITUTION FOR AMERICAN AMERICA IS OF COURSE THE DIVISIVE LEGAL DILEMMA OF THE TIMES.

AND THE FORMER SUPREME COURT JUSTICE STEPHEN BREYER TACKLES THIS HEAD ON IN HIS NEW BOOK WHICH HE SPEAKS ABOUT NEXT WITH WALTER ISAACSON.

>> THANK YOU, CHRISTIANE, AND JUSTICE STEPHEN BREYER, WELCOME TO THE SHOW.

>> THANK YOU VERY MUCH.

>> SO YOU HAVE THIS NEW BOOK, "READING THE CONSTITUTION," AND YOU TALK ABOUT THE PROBLEMS OF BEING TOO MUCH INVOLVED IN TEXTURALISM.

EXPLAIN TO ME WHAT TEXTURALISM IS, AND IS THAT THE SAME AS ORIGINALISM?

>> WHEN YOU READ A STATUTE OR YOU READ THE CONSTITUTION, THERE IS SOME WORDS.

LOOK AT THOSE WORDS, AND YOU SAY WHAT WOULD AN ORDINARY PERSON HAVE THOUGHT THOSE WORDS MEANT AT THE TIME THEY WERE WRITTEN?

SAY 1788, 1789, AND REAL TEXTURALISTS SAY DON'T LOOK AT ANYTHING ELSE.

JUST LOOK AT THOSE WORDS AND THINGS MAYBE RELATED TO THOSE WORDS.

NOT MUCH.

BUT READ THE WORDS.

AND ORIGINALISM SAYS YES, WE AGREE WITH THAT, BUT IN THE CONSTITUTION, THERE IS SOME RATHER VAGUE WORDS, THE RIGHT TO KEEP AND BEAR ARMS IS NOT ACTUALLY SPECIFIC, NOT VERY SPECIFIC.

AND THE FREEDOM OF SPEECH IS LESS SPECIFIC YET.

SO WHAT WE DO IS GO BACK IN OUR MINDS TO THE TIME THAT THOSE WORDS WERE WRITTEN, 1788, 1787, 1869 FOR 14, 15, 16, AROUND THAT TIME AFTER THE CIVIL WAR OR AT THE FOUNDING OF THE COUNTRY.

AND WHAT WOULD AN ORDINARY PERSON HAVE THOUGHT THEY MEANT AT THAT TIME?

>> AND YOU IN THIS BOOK PUSH BACK ON THAT AND SAY WE SHOULD PUT MORE EMPHASIS ON THE PURPOSE.

>> YES.

>> AND BY THE WAY, ON THE EFFECT, THE PRAGMATIC EFFECT, AND SHOULDN'T JUST BE PARSING THE WORDS.

WHAT WAS THE PURPOSE OF IT, AND WHAT PRAGMATIC OUTCOME IT WILL HAVE.

EXPLAIN THE DIFFERENCE OF THAT APPROACH.

>> WELL, THE DIFFERENCE IS THAT THE STATUTES THAT WE INTERPRET IN THE SUPREME COURT ARE USUALLY NOT CLEAR IN TERMS OF THEIR TEXTS.

IF THEY'RE SO CLEAR, WHY ARE THEY IN THE SUPREME COURT?

WE ONLY TAKE CASES WHERE LOWER COURT JUDGES HAVE COME TO DIFFERENT OPINIONS WHAT THEY MEAN, AND WITH THE CONSTITUTION TOO.

THE SAME KIND OF A PROBLEM, BUT EVEN MORE SO.

SO I DON'T THINK TOO OFTEN THE TEXT HELPS VERY MUCH.

AND IT CAN LEAD YOU ASTRAY.

>> WELL, LET'S TAKE SOME OF THE CRITICISM THAT AN ORIGINALIST OR A TEXTURALIST WOULD HAVE OF YOUR PRAGMATIC APPROACH, WHICH IS THAT COULD JUST LEAD YOU DOWN A PATH WHERE YOU'RE NOT EMPHASIZING WHAT THE WORDS ACTUALLY SAY.

YOU'RE JUST TRYING TO SAY WHAT DO I THINK WOULD BE GOOD?

WHAT DO I THINK WOULD BE PRAGMATIC.

>> YES.

>> ISN'T THAT DANGEROUS TO ALLOW JUDGES TO IMPOSE THEIR OWN PRAGMATIC VIEW OF THE WORLD INSTEAD OF FOLLOWING THE TEXTS?

>> WELL, THE WORD PRAGMATIC IS NOT EXACTLY THE RIGHT WORD EITHER.

AND IF YOU HAVE THE PATIENCE TO READ THE WHOLE THING YOU'LL SEE THAT WHAT I'M SAYING IS YES, LOOK AT THE PURPOSES.

LOOK AT THE CONSEQUENCES.

LOOK AT THE VALUES THAT UNDERLIE IT.

BECAUSE THAT'S THE BETTER ALTERNATIVE.

WHAT ABOUT TRYING THE RIGHT TO BEAR ARMS?

WE HAD A CASE INVOLVING A NEW YORK LAW.

I WAS IN DISSENT.

BUT THE MAJORITY SAID HERE'S WHAT WE'LL LOOK TO.

WE'LL LOOK TO WHAT THE FOUNDERS INTENDED AT THE TIME THEY WROTE THESE WORDS.

THAT WAS MADISON.

IN AN EARLIER CASE, THEY SAID WHAT THEY'D INTENDED, THEY INTENDED YOU TO ALLOW TO KEEP A PISTOL UNDER YOUR PILLOW.

I DISSENTED IN THAT, BECAUSE I DON'T THINK THEY MEANT THAT ONE LITTLE BIT.

BUT WHAT I'M OBJECTING TO NOW IS NOT THAT FIRST CASE.

I'M OBJECTING TO WHAT THEY'RE SAYING AT THIS MOMENT.

JUST LOOK AT THE HISTORY.

IN THE 18th CENTURY, EARLIER, MAYBE A LITTLE LATER, THE HISTORY OF WHAT THAT PHRASE, WHAT KIND OF WEAPONS WAS IT ADDRESSING ITSELF TO.

I SAID OKAY, I'LL LOOK IT UP.

YOU KNOW WHAT?

A HILD BARD -- HALDBARD, A SKILL LADDER, AN ASIAN FIRE WHICH YOU THREW OVER THE WALL TO BURN PEOPLE UP ON THE OTHER SIDE OF THE WALL.

IS THAT RELATED TO OR NOT RELATED TO A PISTOL OR ARTILLERY OR TO TELL YOU THE TRUTH, I HAVE NO IDEA WHAT THOSE WEAPONS WERE THAT WERE BEING USED IN 1710 OR SOMETHING.

OR IN 1650s, OR DURING THE 100 YEARS WAR.

YOU SEE YOU, MR. TEXTUALIST, ARE ASKING ME TO TURN AWFULLY IMPORTANT COURSES ON MATTERS WHERE I AM NOT AN EXPERT BECAUSE I'M NOT AN HISTORIAN.

I'M A JUDGE.

I CAN DO THIS.

I CAN GO LOOK AT A COUPLE OF OTHER THINGS.

DID YOU KNOW, MR.

MAJORITY, THAT 400 MILLION GUNS ARE FLOATING AROUND THIS COUNTRY?

AND THOSE 400 MILLION GUNS PUTS US NUMBER ONE ON GUN OWNERSHIP.

AND THOSE 400 MILLION GUNS A LOT OF STUDIES SHOW CAUSE AN AWFUL LOT OF TROUBLE.

THEY CAN CAUSE DEATHS.

THEY CAN CAUSE ILLNESS.

THEY CAN CAUSE HARM OF ALL SORTS.

TO POLICEMEN, TO SPOUSES, TO EVERYBODY UNDER THE SUN.

NOW I THINK THAT THAT FACT, AND FACTS LIKE IT ARE RELEVANT WHEN YOU'RE DECIDING WHETHER THE NEW YORK GUN LAW IS OR IS NOT CONSISTENT WITH YOUR IDEA OF THAT SECOND AMENDMENT.

>> WELL, WAIT, WAIT.

LET ME PUSH BACK ON THAT, BECAUSE THE LAW -- THE CONSTITUTION SAYS WE HAVE A RIGHT TO BEAR ARMS.

IT DOESN'T SAY GEE, LET'S LOOK AT GUN OWNERSHIP AND WHETHER IT'S GOOD OR BAD OR NOT.

>> NO.

>> WHY WOULD THAT MATTER WHEN IT COMES TO A CONSTITUTIONAL QUESTION.

>> OH, YOU THINK IT SAYS THAT EVERYBODY HAS A RIGHT?

I MEAN, IF YOU'RE IN A MENTAL HOSPITAL, DO YOU HAVE A RIGHT TO KEEP YOUR ARMS, COULD KEEP GUNS AROUND?

DO YOU THINK YOU HAVE A RIGHT AFTER YOU SHOT 14 PEOPLE?

DO YOU THINK YOU HAVE A RIGHT TO SHOOT SOMEBODY WHEN YOU'RE TRYING TO STEAL SOME MONEY?

DO YOU THINK YOU HAVE A RIGHT?

I CAN GO ON AND ON AND ON.

NO ONE I THINK WILL CLAIM THAT EVERYONE HAS A RIGHT TO BEAR ARMS.

YOU TO FIGURE OUT WHICH LAWS, WHICH LAWS ARE PERMISSIBLE UNDER THE SECOND AMENDMENT, JUST AS YOU HAVE TO FIGURE OUT UNDER THE FIRST AMENDMENT.

WHAT SPEECH IS PERMISSIBLE.

AND WHAT SPEECH IS NOT.

HEY, LET'S ROB A BANK.

THAT SPEECH WHEN THAT'S SERIOUSLY MEANT, THAT ISN'T PERMISSIBLE.

SOME IS PERMISSIBLE.

SOME IS NOT.

THAT'S THE JOB OF THE JUDGE, TO DRAW THE LIMITS AND TO WORK OUT WHAT THE STATUTE MEANS IN TERMS OF LIMITS.

SO NO ONE TEXTUALIST OR NONTEXTUALIST IS GOING TO GET AWAY FROM THAT PROBLEM.

IN DOBBS, THEY WENT BACK AND THEY OVERRULED TWO CASES, CASES THAT ALLOWED ABORTIONS, ROE V. WADE AND CASEY.

AND SO I ASK THE IMAGINARY MR. TEXTUALIST, MR. TEXTUALIST, WHAT CASES ARE YOU GOING TO OVERRULE?

ARE YOU GOING OVERRULE EVERY PRECEDING CASE THAT DOESN'T USE YOUR ORIGINALIST OR TEXTUALIST METHOD?

ALL OF THEM?

DO YOU KNOW HOW MANY THERE ARE?

I ALREADY SAID IT.

ALL OF THEM.

NO, I EXAGGERATE.

ALMOST ALL OF THEM.

YOU MEAN YOU'RE GOING OVERRULE ALL THOSE?

WE WON'T HAVE ANY LAW LEFT.

NO, THEY WON'T OVERRULE ALL THOSE.

WHICH OF THE MANY THAT YOU COULD OVERRULE PERHAPS WOULD YOU EVEN CHOOSE TO OVERRULE?

AND MY GUESS IS THE ANSWER IS GOING TO BE THE ONES THAT ARE REALLY WRONG IN OUR OPINION.

AH.

REALLY WRONG IN YOUR OPINION.

AND HOW ARE YOU GOING TO DECIDE THAT?

WHO IS GOING TO DECIDE THAT?

YOU'RE GOING DECIDE THAT.

NOW WHEN YOU JUST CHOOSE WHAT YOU LIKE OR WILL YOU FOLLOW THE LAW?

DOESN'T THAT SOUND LIKE THE QUESTION YOU ASK OF ME A LITTLE BIT EARLIER?

THE QUESTION THAT YOU SAID OH, TEXTUALISM WILL STOP ME.

I'LL HAVE TO BE HONEST BECAUSE IT WILL GIVE ME NO POSSIBILITY OF INSTITUTING MY OWN JUDGMENT.

HMM.

YOU HAVE THE SAME PROBLEM, DON'T YOU?

IN ANYONE WHO DOUBTS.

>> LET ME TAKE WHAT MAY BE THE BIGGEST ISSUE NOW WHICH IS A CLASH BETWEEN A TEXTUALIST APPROACH AND A PURPOSE-DRIVEN APPROACH.

AND THAT'S A WHOLE ARENA OF AFFIRMATIVE ACTION AND RACE-BASED THINKING.

THE TEXT OF THE CIVIL RIGHTS ACT IS PRETTY CLEAR.

IT SAYS THERE CANNOT BE DISCRIMINATION ON THE BASIS OF RACE, COLOR, RELIGION, SEX, OR NATIONAL ORIGIN.

SO IF YOU HAVE AFFIRMATIVE ACTION, PERHAPS THAT'S DISCRIMINATING BASED ON RACE.

ON THE OTHER HAND, THE PURPOSE OF THAT LAW WAS TO BRING AFRICAN AMERICANS MORE INTO SOCIETY.

HOW DO YOU BALANCE THAT WHEN YOU TAKE A MORE PURPOSE OR PRAGMATIC DRIVEN APPROACH?

>> IT WILL DEPEND ON THE PARTICULAR CASE.

WHAT WE'VE SAID, BECAUSE RUTH AND I SEVERAL JOINED HER OPINION IN PARENTS INVOLVED AND OTHER CASES.

>> RUTH BADER GINSBURG.

>> AND WE SAY ROUGHLY WHAT YOU SAID.

THAT THERE IS A DIFFERENCE IN TERMS OF THE 14th AMENDMENT, WHICH SAYS EVERY STATE SHALL NOT DENY ANY PERSON EQUAL PROTECTION OF THE LAW.

THERE IS A DIFFERENCE BETWEEN DISCRIMINATION, WHICH KEEPS PEOPLE OUT, HURTS THEM, SEPARATES THE RACES AND THAT KIND OF DISCRIMINATION WHICH IS DESIGNED TO BRING THEM IN, BECAUSE BRINGING THEM IN TO SOCIETY AND CREATING ONE SOCIETY OUT OF A WORLD THAT HAD BEEN DIVIDD SLAVERY AND NONSLAVERY, JIM CROW, ET CETERA, BRINGING THEM IN SO WE HAVE ONE COUNTRY WHERE WE GET ALONG TOGETHER, THAT WAS AN OBJECTIVE OF THE 14th AMENDMENT.

AND WHEN YOU HAVE SOMETHING DISCRIMINATION, MAYBE CALL IT DISCRIMINATION, MAYBE SAY AS LOUIS POWELL SAID, HE SAID THERE IS ROOM HERE.

THERE IS ROOM FOR A TOWN, A CITY, A STATE TO WORK OUT A GOOD WAY TO BRING THESE DIFFERENT RACES TOGETHER IN A WORLD THAT PREVIOUSLY HAD BEEN DIVIDED.

LEGALLY.

DO YOU SEE?

THAT'S THE JOB AND WHAT YOU WANT.

YOU WANT A MATHEMATICAL RULE?

YOU WON'T GET IT.

LAW IS NOT HARD SCIENCE.

IT IS NOT CALCULUS.

YOU HAVE HUMAN BEINGS WHO ARE LOOKING AT THE FACTS, THE FIGURES, YES, THE STATUTE, THE CONSTITUTION, THE VALUES THAT UNDERLIE THEM, AND YOU OFTEN HAVE CASES THAT REQUIRE THAT JUDGE TO THINK IN TERMS OF THOSE VALUES DOES THIS STATUTE GO TOO FAR, TOO FAR.

AH.

THAT'S THE SKILL OR THE EFFORT.

>> JUSTICE ANTONIN SCALIA WAS SORT OF ONE OF THE GREAT ADVOCATES OF THE TEXTUALIST APPROACH.

YOU HAVE BEEN ONE OF THE GREAT ADVOCATES OF THE MORE PRAGMATIC OR PURPOSE-DRIVEN APPROACH.

BUT YOU ALL ARE PRETTY GOOD FRIENDS, AND YOU USED TO DISCUSS IT PUBLICLY AND PRIVATELY.

TELL ME ABOUT THAT.

>> NO, WE WOULD.

WE LIKED IT.

WE ENJOYED IT.

I WOULD TAKE BITS OF THAT CONVERSATION.

I'D SAY, YOU KNOW, I DON'T SAY THAT THE IMPORTANCE OF FREE SPEECH CHANGES OVER TIME.

I SAY GEORGE WASHINGTON DIDN'T KNOW ABOUT THE INTERNET.

THE FACTS CHANGE.

AND HE WOULD SAY I KNEW THAT.

IF WE FOLLOW YOUR SYSTEM OF, SAY, TAKING INTO ACCOUNT, I MEAN, DO WE TAKE INTO ACCOUNT THE FACT THAT WHEN THEY WROTE THESE AMENDMENTS 18th CENTURY, CIVIL WAR, HALF THE POPULATION, MAINLY THE WOMEN WERE NOT PART OF THE POLITICAL PROCESS.

AND MORE THAN THAT, THERE WAS SLAVERY MUCH OF THAT TIME, AND JIM CROW.

DO WE TAKE THAT INTO ACCOUNT?

MAYBE.

I SAY.

AND YOU SEE?

IT'S TOO COMPLICATED.

TOO COMPLICATED.

YOU MIGHT BE ABLE TO THINK YOU CAN DO IT, BUT NOBODY ELSE CAN.

AND I SAY WELL, MAYBE.

OTHERS HAVE.

I'M NOT THE ONLY ONE.

BUT IF WE TAKE YOUR SYSTEM, WE'RE GOING TO END UP WITH A CONSTITUTION THAT NO ONE WANTS.

LAWS ARE DESIGNED.

THEY'RE A HUMAN INSTITUTION DESIGNED TO HELP NOW 320 MILLION AMERICANS OF EVERY RACE, RELIGION, POINT OF VIEW, HELP THEM LIVE TOGETHER PEACEFULLY.

AND WE HOPE PROSPEROUSLY.

AND IN THE CONSTITUTION, WE HAVE VALUES.

THE VALUES DON'T CHANGE VERY MUCH.

THE FACTS CHANGE.

THOSE VALUES ARE DEMOCRACY, HUMAN RIGHTS, SEPARATION OF POWERS SO NO ONE BECOMES TOO POWERFUL.

A DEGREE OF EQUALITY, YEAH, AND THE RULE OF LAW.

ALL THAT'S RIGHT THERE.

IT'S RIGHT THERE IN THIS DOCUMENT HERE.

THERE IT IS.

ALL RIGHT.

AND MARSHALL AND THE OTHER FOUNDERS, THEY SAID WE DON'T WANT THAT TO CHANGE.

BUT HE SAYS AS WELL THE FUTURE WILL BRING PROBLEMS THAT WE CAN SEE NOW ONLY DIMLY, IF AT ALL, AND THESE VALUES SHOULD WORK WERE THOSE PROBLEMS NOT YET SEEN.

THAT IS ALL IN THE WORD.

IT IS A CONSTITUTION WE ARE EXPOUNDING, WHICH NO ONE KNOWS WHAT IT MEANS, BUT IT'S IMPORTANT.

AND IT'S DONE IN THE SUPREME COURT, WRITTEN ON THE WALL.

AND THAT IS WHAT MY RESPONSE IS TO JUSTICE SCALIA.

>> WE'VE SEEN A LOT OVER THE COURSE OF HISTORY, BIG IDEOLOGICAL SHIFTS ON THE COURT, I THINK, ESPECIALLY SAY FROM THE TAFT COURT TO THE NEW DEAL COURT IS A BIG SHIFT.

DO YOU THINK WE'RE UNDERGOING A BIG SHIFT NOW?

>> I THINK THAT'S A VERY GOOD QUESTION.

I THINK THE TAFT COURT, YOU GO BACK TO 1900, AND YOU'LL SEE A UNITED STATES OF AMERICA THAT HAD JUST GROWN FROM ONE OF THE POOREST COUNTRIES IN THE WORLD TO ONE OF THE RICHEST THROUGH INVENTIONS, THROUGH METHODS OF MARKETING, THROUGH METROPOLITANS OF FINANCE.

AND I THINK THE TAFT COURT WAS WORRIED AND EMPHASIZED THE WORDS "PROPERTY" AND "CONTRACT" AND "LAISSEZ-FAIRE," THE FIRST WORDS IN THE CONSTITUTION, BECAUSE THEY DIDN'T WANT TO CAN ILL THE GOOSE THEY BELIEVED WAS LAYING A GOLDEN EGG.

NOBODY THOUGHT THAT BY THE TIME OF THE GREAT DEPRESSION, BY THE TIME THE ROOSEVELT'S NEW DEAL COURT.

AND THAT NEW DEAL COURT DID NOT BELIEVE, BECAUSE THERE WERE VERY FEW PEOPLE IN THE UNITED STATES BELIEVED THAT WHAT THIS IS ALL ABOUT IS KEEPING LAISSEZ-FAIRE AND LETTING COMPANIES DO WHATEVER THEY WANT.

AND SO THEY DECIDED THE CASES SOMEWHAT DIFFERENTLY.

THE PERSON WHO DESCRIBED WHAT WAS GOING ON THERE WALT PRINE, ANOTHER GREAT CONSTITUTIONAL SCHOLAR.

AND HE SAID AS FAR AS POLITICS IS CONCERNED HE IS TALKING ABOUT, NO JUDGE, NO JUDGE DECIDES ACCORDING TO THE TEMPERATURE OF THE DAY.

BUT EVERY JUDGE IS AFFECTED BY THE CLIMATE OF THE SEASON.

AND I HOPE THAT, BUT I CAN'T PROVE, THAT THREE YEARS FROM NOW, FOUR YEARS FROM NOW PEOPLE WILL SEE THAT THIS TEXTUALISM AND ORIGINALISM PUSHED TO A PRETTY STRONG EXTREME WHERE YOU CAN'T USE OTHER THINGS, THAT IT DOESN'T WORK.

THAT IT DOESN'T TAKE ANY ACCOUNT OR ENOUGH ACCOUNT OF THE FACT THAT WOMEN DIDN'T HAVE THE RIGHT TO VOTE IN THESE WORDS IN THE CONSTITUTION FOR THE MOST PART WERE WRITTEN, THAT TRYING TO FOLLOW TEXTUALISM IN SOME OF THESE STATUTES AND SOME OF THESE CONSTITUTIONS AND LOOKING TO NOTHING ELSE FOR TEXT IS GOING TO UNDERMINE THE VALUES THAT THIS DOCUMENT SOUGHT TO KEEP AND WORK INTO THE FUTURE, THAT IT'S GOING TO MAKE IT MORE DIFFICULT FOR CONGRESS TO PASS LAWS USING SOMETIMES ABSTRACT PHRASES SO THAT YOU CAN ADAPT THOSE LAWS MORE EASILY TO A FUTURE WITH CHANGING PROBLEMS AND CHANGING CIRCUMSTANCES.

I THINK THEY'LL DISCOVER THAT THAT'S A PRETTY HARD ROAD TO FOLLOW, A PRETTY HARD ROAD TO TRAVEL.

AND SO IT WILL DIMINISH.

BUT IF IT DOESN'T HAPPEN, I WORRY THAT PEOPLE WILL HAVE LESS REASON TO FOLLOW A RULE OF LAW.

>> MR. JUSTICE BREYER, THANK YOU SO MUCH FOR JOINING US.

>> THANK YOU.