By Dave Andrusko

I’m not sure what the protocol is, but I’m guessing retired Supreme Court justices are not supposed to drop a new book trashing the newest members of the Court on the same day the justices will hear FDA v. Alliance for Hippocratic Medicine. That case, to be heard March 26, is the first time the justices will weigh in on the issue of abortion since the historic 2022 ruling in Dobbs v. Jackson Women’s Health Organization overturning Roe.

But that’s exactly what retired Justice Stephen G. Breyer is doing with ‘Reading the Constitution: Why I Chose Pragmatism, Not Textualism,” a no-holds-barred attack on the three newest justices—Neil M. Gorsuch, Brett M. Kavanaugh and Amy Coney Barrett —”without naming names,” according to Adam Liptak, the Supreme Court correspondent for the New York Times to whom Breyer gave an exclusive interview.

I don’t have the book in front of me, but I’m pretty sure it is not one of those “more in sorrow than anger” exercises. Breyer has plenty of criticism and Liptak adds his own slash and burn attacks.

From the book: “The Dobbs majority’s hope that legislatures and not courts will decide the abortion question will not be realized,” he wrote.

But Breyer real feelings were “more forceful during the interview.”

“There are too many questions,” he said.

“Are they really going to allow women to die on the table because they won’t allow an abortion which would save her life? I mean, really, no one would do that. And they wouldn’t do that. And there’ll be dozens of questions like that.”

If Breyer has followed the legislation at all, he knows this is rank demagoguery. No bill would “allow women to die on the table because they won’t allow an abortion which would save her life.” None.

While on the court Breyer was a bit of politician and now that he is off, he seems to feel he is free to rouse the rabble without any proof. Liptak takes the incendiary language several steps further:

The book is a sustained critique of the current court’s approach to the law, one that he said fetishizes the texts of statutes and the Constitution, reading them woodenly, without a common-sense appreciation of their purpose and consequences.

Breyer longs for the good old days when justices chosen by Republicans [Sandra Day O’Connor, David H. Souter and Anthony M. Kennedy] “largely shared his basic approach to the law.”

“Sandra, David — I mean, the two of them, I would see eye to eye not necessarily in the result in every case, but just the way you approach it.” Breyer told Liptak. “And Tony, too, to a considerable degree.”

Ah, for the good old days when Republican justices knew their place.

If you get a chance, do read “Justice Breyer, Off the Bench, Sounds an Alarm Over the Supreme Court’s Direction.” You won’t be surprised but you will be further informed.