A deeply informed analysis of judicial history.
An esteemed jurist assesses the limitations of textualism.
Breyer, who retired in 2022 after 28 years on the U.S. Supreme Court, offers a cogent explanation of judicial reasoning, focusing particularly on the difference between textualism—now dominating the current Court—and pragmatism, which is his guiding principle. In making decisions, all judges consider “text, history, precedent, tradition, purposes, values, and consequences.” Textualists, though, “ask the judge to look, almost exclusively, to language. And their main point is that statutory (or constitutional) words mean what a reasonable person would have taken them to mean at the time they were written.” Breyer, however, sees this perspective as myopic. “Without ignoring the text,” he explains, “I normally put more weight on the statute’s purposes and the consequences to which a particular interpretation will likely lead. I will sometimes ask how a (hypothetical) ‘reasonable legislator’ would have interpreted the statute in light of its purposes.” He also considers “how those affected by the decision will react.” The author carefully examines many cases throughout the Court’s history, including Dobbs, which overturned Roe v. Wade, and cases for which he wrote the dissenting view. He argues persuasively that overruling earlier precedent can lead to chaos, because in departing from settled law, “the court could look at all previous decisions.” Breyer’s patient explanation of cases reveals the intricacies of judicial decision-making, even for textualists, who focus on the “highly complex” wording of the Constitution. Although he argues persuasively against textualism, he is reluctant to foresee a paradigm shift toward textualism incited by the present Court. Cautiously optimistic, he predicts that with time and experience, the new Court judges will realize the limitations of this approach and understand that “the ultimate object of law is to allow human beings to live peacefully and prosperously together in communities.”
A deeply informed analysis of judicial history.Pub Date: March 26, 2024
ISBN: 9781668021538
Page Count: 368
Publisher: Simon & Schuster
Review Posted Online: Jan. 25, 2024
Kirkus Reviews Issue: March 1, 2024
BOOK REVIEW
BOOK REVIEW
Cogent, well-timed ideas for meeting today’s biggest challenges.
Helping liberals get out of their own way.
Klein, a New York Times columnist, and Thompson, an Atlantic staffer, lean to the left, but they aren’t interrogating the usual suspects. Aware that many conservatives have no interest in their opinions, the authors target their own side’s “pathologies.” Why do red states greenlight the kind of renewable energy projects that often languish in blue states? Why does liberal California have the nation’s most severe homelessness and housing affordability crises? One big reason: Liberal leadership has ensnared itself in a web of well-intentioned yet often onerous “goals, standards, and rules.” This “procedural kludge,” partially shaped by lawyers who pioneered a “democracy by lawsuit” strategy in the 1960s, threatens to stymie key breakthroughs. Consider the anti-pollution laws passed after World War II. In the decades since, homeowners’ groups in liberal locales have cited such statutes in lawsuits meant to stop new affordable housing. Today, these laws “block the clean energy projects” required to tackle climate change. Nuclear energy is “inarguably safer” than the fossil fuel variety, but because Washington doesn’t always “properly weigh risk,” it almost never builds new reactors. Meanwhile, technologies that may cure disease or slash the carbon footprint of cement production benefit from government support, but too often the grant process “rewards caution and punishes outsider thinking.” The authors call this style of governing “everything-bagel liberalism,” so named because of its many government mandates. Instead, they envision “a politics of abundance” that would remake travel, work, and health. This won’t happen without “changing the processes that make building and inventing so hard.” It’s time, then, to scrutinize everything from municipal zoning regulations to the paperwork requirements for scientists getting federal funding. The authors’ debut as a duo is very smart and eminently useful.
Cogent, well-timed ideas for meeting today’s biggest challenges.Pub Date: March 18, 2025
ISBN: 9781668023488
Page Count: 320
Publisher: Avid Reader Press
Review Posted Online: Jan. 16, 2025
Kirkus Reviews Issue: Feb. 15, 2025
BOOK REVIEW
For Howard Zinn, long-time civil rights and anti-war activist, history and ideology have a lot in common. Since he thinks that everything is in someone's interest, the historian—Zinn posits—has to figure out whose interests he or she is defining/defending/reconstructing (hence one of his previous books, The Politics of History). Zinn has no doubts about where he stands in this "people's history": "it is a history disrespectful of governments and respectful of people's movements of resistance." So what we get here, instead of the usual survey of wars, presidents, and institutions, is a survey of the usual rebellions, strikes, and protest movements. Zinn starts out by depicting the arrival of Columbus in North America from the standpoint of the Indians (which amounts to their standpoint as constructed from the observations of the Europeans); and, after easily establishing the cultural disharmony that ensued, he goes on to the importation of slaves into the colonies. Add the laborers and indentured servants that followed, plus women and later immigrants, and you have Zinn's amorphous constituency. To hear Zinn tell it, all anyone did in America at any time was to oppress or be oppressed; and so he obscures as much as his hated mainstream historical foes do—only in Zinn's case there is that absurd presumption that virtually everything that came to pass was the work of ruling-class planning: this amounts to one great indictment for conspiracy. Despite surface similarities, this is not a social history, since we get no sense of the fabric of life. Instead of negating the one-sided histories he detests, Zinn has merely reversed the image; the distortion remains.
Pub Date: Jan. 1, 1979
ISBN: 0061965588
Page Count: 772
Publisher: Harper & Row
Review Posted Online: May 26, 2012
Kirkus Reviews Issue: Jan. 1, 1979
BOOK REVIEW
BOOK REVIEW
BOOK REVIEW
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