In 2006 Justice Breyer and Justice Scalia sat down with ABC Legal Correspondent Jan Crawford Greenburg to share their thoughts on the Constitution and the role of judges in interpreting the law. One of the highlights of the talk was Justice Breyer's description of the "six tools" that "most judges, appellate judges in particular" may use to decide particularly difficult questions of statutory or constitutional interpretation. These tools include:
(1) the statutory text;
(2) the statute's legislative history (i.e., "how did those words get there?");
(3) tradition (i.e., "how those words have come to be used before and after");
(5) the purpose of the statute or statutory phrase in question; and
(6) the consequences that are relevant to achieving the purpose of the statute at issue (e.g., "the Fourth Amendment is about privacy, not speech," and "the First Amendment is about speech, not privacy").
Justice Breyer went on to discuss which of these six tools he believes judges tend to embrace in a misguided effort to avoid a subjective result. You can watch Part II of the Justices' "Conversation on the Constitution" below. Fast-forward to 5:54 for Justice Breyer's discussion of these six tools: