Making Our Democracy Work: A Judge's View
288 pp., $26.95
From time to time, Justices Breyer and Scalia hit the road together, conducting public debates on how the Supreme Court should decide its cases. Justice Scalia plays the flamboyant conservative, defending his "originalist" mode of interpretation, while Justice Breyer serves as the sensible liberal, insisting that the Court must consider changing circumstances and pragmatic factors, not just what the drafters originally thought and the Constitution says.
In Making Our Democracy Work, Justice Breyer goes it alone. Breyer's tone is genial and avuncular throughout, like a patient civics instructor or the scholar of bureaucracy he once was. I suspect other readers will find themselves thinking, as I did, where's Scalia when you need him? Scalia's originalism is a frequent foil, but the book could use a dollop of Scalia himself.
Justice Breyer seems to have two main objectives. He wants to provide a framework for his mode of pragmatic decision-making, a structure that cannot simply be dismissed as activist liberal judging. Under the rubric of a "workable Constitution," Breyer encourages judges to consider the "purposes and consequences" of the Constitutional or statutory provision; the comparative expertise of the courts as compared to legislators, agencies or the president; the importance of following precedent; and the role of "values and proportionality" in defining individual rights.
Justice Breyer's other main concern is the Court's protection of unpopular minorities in times of war or threats to national security, and the more general question of whether Supreme Court pronouncements will be honored when (as with Brown v. Board of Education or Bush v. Gore) they upset a sizeable portion of the populace. Here Hotspur's reply to Glendower's claim that "I can call spirits from the vasty deep" in Shakespeare's Henry IV is his guide. Hotspur asks "but will they come when you do call for them?" Breyer asks how the Court can assure that the public will accept its controversial decisions. The answer, Breyer contends, is by faithfully following his pragmatic principles.
For Breyer, the Supreme Court's decisions in the four Guantanamo Bay cases are its biggest success in recent years. He devotes the final chapter to a brief analysis of each of the decisions, praising the Court's balancing of the competing interests of national security and the detainees' opportunity to fully defend themselves; and its sensitivity to the respective roles of the courts, the president, Congress and the military. (The cases are very clearly summarized, but you still won't remember exactly what the issues were after you put the book down.)
Religion figures almost not at all in this book about making our democracy work. Indeed, although Justice Breyer praises and endorses "subsidiarity"—the idea that "government power … should rest in the hands of the smallest unit of government capable of dealing successfully with" the issue in question—one would never guess that the concept was developed in a series of papal letters and owes everything to the renaissance in Catholic natural law theology in the past century or so. After a grudging and somewhat misleading suggestion that subsidiarity "originated in late-medieval religious thought," Breyer enthusiastically recounts its use in recent European Union decision-making "in this more democratic age."
Making Our Democracy Work is not exciting, but Breyer's apologia for liberal judging is clear, accessible, and worth reading. If you're interested in understanding the alternative to Justice Scalia's originalism and Chief Justice Roberts' notion that judges should simply be umpires who "call balls and strikes," this is it.
David Skeel, a law professor at the University of Pennsylvania, blogs about Christianity, law, literature, and other topics at lessleast.com.
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