In the latest issue of the Review of the California Supreme Court Historical Society (see here), former Supreme Court Justice Joseph Grodin uses a book review to level harsh criticism at the current U.S. Supreme Court.
Discussing former U.S. Supreme Court Justice Stephen Breyer’s newest publication, “Reading the Constitution: Why I Chose Pragmatism, Not Textualism,” Justice Grodin says “a great darkness has descended upon the court.” He criticizes Breyer for being “simply too nice” in the book’s negative assessment of the high court conservative majority’s use of textualism to analyze statutes and constitutional provisions.
Grodin writes that Breyer “refuses to acknowledge that the interpretive methodologies that he criticizes have been chosen by a majority of his former colleagues because they will yield, or can be used to yield, results more in keeping with their conservative ideologies, and that such methodologies (textualism and originalism) will be abandoned if they do not produce the desired result.”
Grodin also expresses his disdain for the United States v. Trump decision, in which he says “the court’s majority showed its true colors.” He describes the opinion, issued after the Breyer book was published, this way: “It held — without textual support and almost certainly contrary to the assumptions of the founders that no person is above the law — that a former president may not be charged with committing crimes while in office if his conduct was within the scope of an ill-defined category of official acts.”
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Grodin, a staunch opponent of the death penalty who voted to reverse 26 capital judgments in 32 opportunities, knows a thing or two about using “methodologies that produce desired results.” Identifying cases in which jurists have voted contrary to their preferred outcomes isn’t always easy, but as a general rule the longer jurists serve on a court the easier it becomes to discern their preferences, and thus to identify those occasions on which they succumb to them. If the descent of great darkness correlates with a pattern of votes aligned with preferred outcomes, Joe Grodin’s tenure on the California Supreme Court was as sunny as overcast night in Alaska during the third week in December.