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Making Our Democracy Work: A Judge's View
The Supreme Court is one of the most extraordinary institutions in our system of government. Charged with the responsibility of interpreting the Constitution, the nine unelected justices of the Court have the awesome power to strike down laws enacted by our elected representatives. Why does the public accept the Court’s decisions as legitimate and follow them, even when those decisions are highly unpopular? What must the Court do to maintain the public’s faith? How can the Court help make our democracy work? These are the questions that Justice Stephen Breyer tackles in this groundbreaking book.
Today we assume that when the Court rules, the public will obey. But Breyer declares that we cannot take the public’s confidence in the Court for granted. He reminds us that at various moments in our history, the Court’s decisions were disobeyed or ignored. And through investigations of past cases, concerning the Cherokee Indians, slavery, and Brown v. Board of Education, he brilliantly captures the steps—and the missteps—the Court took on the road to establishing its legitimacy as the guardian of the Constitution.
Justice Breyer discusses what the Court must do going forward to maintain that public confidence and argues for interpreting the Constitution in a way that works in practice. He forcefully rejects competing approaches that look exclusively to the Constitution’s text or to the eighteenth-century views of the framers. Instead, he advocates a pragmatic approach that applies unchanging constitutional values to ever-changing circumstances—an approach that will best demonstrate to the public that the Constitution continues to serve us well. The Court, he believes, must also respect the roles that other actors—such as the president, Congress, administrative agencies, and the states—play in our democracy, and he emphasizes the Court’s obligation to build cooperative relationships with them.
Finally, Justice Breyer examines the Court’s recent decisions concerning the detainees held at Guantánamo Bay, contrasting these decisions with rulings concerning the internment of Japanese-Americans during World War II. He uses these cases to show how the Court can promote workable government by respecting the roles of other constitutional actors without compromising constitutional principles.
Making Our Democracy Work is a tour de force of history and philosophy, offering an original approach to interpreting the Constitution that judges, lawyers, and scholars will look to for many years to come. And it further establishes Justice Breyer as one of the Court’s greatest intellectuals and a leading legal voice of our time.
Today we assume that when the Court rules, the public will obey. But Breyer declares that we cannot take the public’s confidence in the Court for granted. He reminds us that at various moments in our history, the Court’s decisions were disobeyed or ignored. And through investigations of past cases, concerning the Cherokee Indians, slavery, and Brown v. Board of Education, he brilliantly captures the steps—and the missteps—the Court took on the road to establishing its legitimacy as the guardian of the Constitution.
Justice Breyer discusses what the Court must do going forward to maintain that public confidence and argues for interpreting the Constitution in a way that works in practice. He forcefully rejects competing approaches that look exclusively to the Constitution’s text or to the eighteenth-century views of the framers. Instead, he advocates a pragmatic approach that applies unchanging constitutional values to ever-changing circumstances—an approach that will best demonstrate to the public that the Constitution continues to serve us well. The Court, he believes, must also respect the roles that other actors—such as the president, Congress, administrative agencies, and the states—play in our democracy, and he emphasizes the Court’s obligation to build cooperative relationships with them.
Finally, Justice Breyer examines the Court’s recent decisions concerning the detainees held at Guantánamo Bay, contrasting these decisions with rulings concerning the internment of Japanese-Americans during World War II. He uses these cases to show how the Court can promote workable government by respecting the roles of other constitutional actors without compromising constitutional principles.
Making Our Democracy Work is a tour de force of history and philosophy, offering an original approach to interpreting the Constitution that judges, lawyers, and scholars will look to for many years to come. And it further establishes Justice Breyer as one of the Court’s greatest intellectuals and a leading legal voice of our time.
288 pages, Hardcover
First published January 1, 2010
104 people are currently reading
1127 people want to read
About the author
Stephen G. Breyer
41 books76 followersStephen Gerald Breyer is a retired Associate Justice of the U.S. Supreme Court. Appointed by Democratic President Bill Clinton in 1994, and known for his pragmatic approach to constitutional law, Breyer is generally associated with the more liberal side of the Court.
Following a clerkship with Supreme Court Associate Justice Arthur Goldberg in 1964, Breyer became well-known as a law professor and lecturer at Harvard Law School starting in 1967. There he specialized in the area of administrative law, writing a number of influential text books that remain in use today. He held other prominent positions before being nominated for the Supreme Court, including special assistant to the United States Assistant Attorney General for Antitrust, and assistant special prosecutor on the Watergate Special Prosecution Force in 1973.
In his 2005 book Active Liberty, Breyer made his first attempt to systematically lay out his views on legal theory, arguing that the judiciary should seek to resolve issues so as best to encourage popular participation in governmental decisions.
Following a clerkship with Supreme Court Associate Justice Arthur Goldberg in 1964, Breyer became well-known as a law professor and lecturer at Harvard Law School starting in 1967. There he specialized in the area of administrative law, writing a number of influential text books that remain in use today. He held other prominent positions before being nominated for the Supreme Court, including special assistant to the United States Assistant Attorney General for Antitrust, and assistant special prosecutor on the Watergate Special Prosecution Force in 1973.
In his 2005 book Active Liberty, Breyer made his first attempt to systematically lay out his views on legal theory, arguing that the judiciary should seek to resolve issues so as best to encourage popular participation in governmental decisions.
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April 29, 2011
When the judicial branch of our government – the only unelected portion – is attacked as being “activist”, I cannot help but think that the portion of the American electorate that thinks this is woefully unaware not just of how the judicial system works, but also lacking in a basic understanding of U.S. history. Fortunately, a book like this comes along – by long-serving Supreme Court Justice Breyer – that is brilliantly concise and readable. So much so, that it should be considered required reading by all Americans.
From the outset, Breyer asserts:
Our system of democratic government is not pure majoritarian democracy, but majoritarian democracy with boundaries set by our constitutional structure. And by rights that the Constitution ensures to individuals and minorities against the majority’s desires.
Which, as introductory classes on U.S. Government often say, constitutes protecting the minority from the tyranny of the majority. (And more on that later.)
In Part I of his book, Breyer reviews several historical cases that shaped how the Court goes about its business, and how and in what circumstances it exerts its Constitutionally-derived powers – Marbury vs. Madison being the first test cases that established judicial review. (All of which can easily be interpreted as “activist”, I might add.) Of paramount importance, a judicial opinion should be “principled, reasoned, transparent, and informative. And a strong opinion should prove persuasive, make a lasting impression on the minds of those who read it, and (if a dissent) eventually influence the law to move in the direction it proposes.” (The italicized portion – mine -- being “activist” in both theory and practice.) Breyer uses this when reflecting on the fact that the Dred Scott and Cherokee decisions were painfully poor examples of judicial reasoning, while the Little Rock decision (Brown v. Board of Education) was a shining example of justice accomplished.
On an interesting and perhaps ironic side-note, Breyer mentions none-to-casually that the site marking the grave of the wife of the Cherokee chief who died en route during the infamous Trail of Tears (a result of the executive branch doing nothing to enforced a Supreme Court decision in favor of the Cherokee nation during a land dispute with the state of Georgia) lies only a mile away from Little Rock High School, the site where law won one of its greatest victories when the executive branch fulfilled its Constitutional obligation to enforce the law. In short, it shows a complete reversal of the power of the Supreme Court, the public trust, and a true balance of power between the branches of the government that had been lacking a century before.
In Part II, Breyer exits historical analysis of key cases, and considers more broad implications of the role of the judicial branch. From the outset, he notes:
…the Court should reject approaches to interpreting the Constitution that consider the document’s scope and application as fixed at the moment of framing. Rather, the Court should regard the Constitution as containing unwavering values that must be applied flexibly to ever-changing circumstances. The Court must consider not just how eighteenth-century Americans used a particular phrase but also how the values underlying that phrase today to circumstances perhaps then inconceivable.”
Again, not only decidedly argue against an anti-activist stance – and let’s face it, judicial activism has been around with us since Marbury v. Madison – but against strict Constitutionalist theory. (Bogus, if you ask me. Strip away the Amendments one by one, and you have the working of a democracy for a very select few people based upon gender, age, and class.)
Much of the rest of his book is devoted to more recent examples of where the judiciary stepped in and interpreted laws either established by the legislative branch, or policies enacted by the executive. But towards the closing of this slender volume – as it comes in at just over two hundred pages – Breyer astutely recommends:
It takes time and continuous effort to communicate the nature and importance of our government institutions. Support for the judicial institution rests upon teaching in an organized way to generations of students about our history and our government. It grows out of knowledge of our Revolution, our founding documents, the Civil War, and eighty years of legal segregation. It rests upon an understanding of our Constitution, of how government works in practice, and of the importance of the students’ own eventual participation to the Court’s continued effectiveness.
Amen to that.
From the outset, Breyer asserts:
Our system of democratic government is not pure majoritarian democracy, but majoritarian democracy with boundaries set by our constitutional structure. And by rights that the Constitution ensures to individuals and minorities against the majority’s desires.
Which, as introductory classes on U.S. Government often say, constitutes protecting the minority from the tyranny of the majority. (And more on that later.)
In Part I of his book, Breyer reviews several historical cases that shaped how the Court goes about its business, and how and in what circumstances it exerts its Constitutionally-derived powers – Marbury vs. Madison being the first test cases that established judicial review. (All of which can easily be interpreted as “activist”, I might add.) Of paramount importance, a judicial opinion should be “principled, reasoned, transparent, and informative. And a strong opinion should prove persuasive, make a lasting impression on the minds of those who read it, and (if a dissent) eventually influence the law to move in the direction it proposes.” (The italicized portion – mine -- being “activist” in both theory and practice.) Breyer uses this when reflecting on the fact that the Dred Scott and Cherokee decisions were painfully poor examples of judicial reasoning, while the Little Rock decision (Brown v. Board of Education) was a shining example of justice accomplished.
On an interesting and perhaps ironic side-note, Breyer mentions none-to-casually that the site marking the grave of the wife of the Cherokee chief who died en route during the infamous Trail of Tears (a result of the executive branch doing nothing to enforced a Supreme Court decision in favor of the Cherokee nation during a land dispute with the state of Georgia) lies only a mile away from Little Rock High School, the site where law won one of its greatest victories when the executive branch fulfilled its Constitutional obligation to enforce the law. In short, it shows a complete reversal of the power of the Supreme Court, the public trust, and a true balance of power between the branches of the government that had been lacking a century before.
In Part II, Breyer exits historical analysis of key cases, and considers more broad implications of the role of the judicial branch. From the outset, he notes:
…the Court should reject approaches to interpreting the Constitution that consider the document’s scope and application as fixed at the moment of framing. Rather, the Court should regard the Constitution as containing unwavering values that must be applied flexibly to ever-changing circumstances. The Court must consider not just how eighteenth-century Americans used a particular phrase but also how the values underlying that phrase today to circumstances perhaps then inconceivable.”
Again, not only decidedly argue against an anti-activist stance – and let’s face it, judicial activism has been around with us since Marbury v. Madison – but against strict Constitutionalist theory. (Bogus, if you ask me. Strip away the Amendments one by one, and you have the working of a democracy for a very select few people based upon gender, age, and class.)
Much of the rest of his book is devoted to more recent examples of where the judiciary stepped in and interpreted laws either established by the legislative branch, or policies enacted by the executive. But towards the closing of this slender volume – as it comes in at just over two hundred pages – Breyer astutely recommends:
It takes time and continuous effort to communicate the nature and importance of our government institutions. Support for the judicial institution rests upon teaching in an organized way to generations of students about our history and our government. It grows out of knowledge of our Revolution, our founding documents, the Civil War, and eighty years of legal segregation. It rests upon an understanding of our Constitution, of how government works in practice, and of the importance of the students’ own eventual participation to the Court’s continued effectiveness.
Amen to that.
February 16, 2012
Aimed at the non-specialist, Associate Justice Stephen Breyer's book does a good job at using some of the more important cases in the history of the Court to sketch his personal approach to the Constitution. He then discusses these cases in relation to how he formed his moderate, consequentialist, and pragmatic approach to interpreting the Constitution and various statutes.
Part I considers how the Constitution can ensure a workable democracy while at the same time maintaining its legitimizing power. More to the point, "why should a democracy, a political system based on representation and accountability, entrust the final or near-final making of such highly significant decisions to judges who are unelected, independent, and insulated from direct impact of public opinion?" (p. 4). Some of the cases Breyer looks in this section are Marbury v. Madison, the Cherokee Indian cases of the 1830s, Brown v. Board of Education, Dred Scott, and Bush v. Gore, and uses these cases to show the growth of popular acceptance of court decisions, beginning with Jefferson's refusal acknowledge Marbury's commission to the seeming blanket acceptance of the fact that the Supreme Court chose the President in 2000. The chronological discussion smartly considers the changing contours of public opinion and describes how the Court, an institution that began with almost no sense of judicial legitimacy, constructed it slowly over time. That Breyer considers the case of legitimacy first is telling, and it is obvious that Breyer knows that the Court is powerless without this assumed legitimacy.
Part II discusses some of the ways in which Justice Breyer believes the Court must maintain the public trust it has earned. Here, he spells out the differences he perceives between a "text-based" approach (which he argues against) and a "purposes-and-consequences" approach (which he advocates). The former seems roughly equivalent to an unchanging, ahistorical originalism on the order of what Justice Scalia argues for, while the latter resembles a living Constitution. Here, he discusses the role of federalism, the roles and specialties of other courts, and stare decisis.
Part III discusses individual liberties, especially the cases coming out of World War II (Korematsu and Hirabayashi) and executive power and accountability (Rasul, Hamdi, Hamdan, and Boumediene).
For someone who might be familiar with the history of the jurisprudence discussed above, as any law school graduate would be, the historical parts of the book will already be extremely familiar. While not an attorney myself, I had the pleasure of discussing this book with my partner who is one, which made reading it all the more enlightening, and the source of a lot of exciting discussion. I have always admired Breyer's moderate, pragmatic decision-making and read this book mostly to see how he constructed this approach. It's a really good synthesis of the history and opinion that gives a lot of insight into Breyer's opinions, and will shed some light on Breyer's hermeneutic decisions even for those familiar with the case law.
Part I considers how the Constitution can ensure a workable democracy while at the same time maintaining its legitimizing power. More to the point, "why should a democracy, a political system based on representation and accountability, entrust the final or near-final making of such highly significant decisions to judges who are unelected, independent, and insulated from direct impact of public opinion?" (p. 4). Some of the cases Breyer looks in this section are Marbury v. Madison, the Cherokee Indian cases of the 1830s, Brown v. Board of Education, Dred Scott, and Bush v. Gore, and uses these cases to show the growth of popular acceptance of court decisions, beginning with Jefferson's refusal acknowledge Marbury's commission to the seeming blanket acceptance of the fact that the Supreme Court chose the President in 2000. The chronological discussion smartly considers the changing contours of public opinion and describes how the Court, an institution that began with almost no sense of judicial legitimacy, constructed it slowly over time. That Breyer considers the case of legitimacy first is telling, and it is obvious that Breyer knows that the Court is powerless without this assumed legitimacy.
Part II discusses some of the ways in which Justice Breyer believes the Court must maintain the public trust it has earned. Here, he spells out the differences he perceives between a "text-based" approach (which he argues against) and a "purposes-and-consequences" approach (which he advocates). The former seems roughly equivalent to an unchanging, ahistorical originalism on the order of what Justice Scalia argues for, while the latter resembles a living Constitution. Here, he discusses the role of federalism, the roles and specialties of other courts, and stare decisis.
Part III discusses individual liberties, especially the cases coming out of World War II (Korematsu and Hirabayashi) and executive power and accountability (Rasul, Hamdi, Hamdan, and Boumediene).
For someone who might be familiar with the history of the jurisprudence discussed above, as any law school graduate would be, the historical parts of the book will already be extremely familiar. While not an attorney myself, I had the pleasure of discussing this book with my partner who is one, which made reading it all the more enlightening, and the source of a lot of exciting discussion. I have always admired Breyer's moderate, pragmatic decision-making and read this book mostly to see how he constructed this approach. It's a really good synthesis of the history and opinion that gives a lot of insight into Breyer's opinions, and will shed some light on Breyer's hermeneutic decisions even for those familiar with the case law.
January 8, 2011
Justice Breyer's book is definitely pitched to non-lawyers, which makes it hard for me (specialized in constitutional law in law school) to evaluate on its own merits -- his quickie summation of Marbury is one of the better ones I've read, but since I've read dozens, my eyes somewhat glaze over.
What makes the book interesting is that it's not just another attempt to explain the workings of the court to the general public; Breyer's sketching out a theory of how the court should decide cases in order to maximize the likelihood that the public will accept even very unpopular decisions. The democratic legitimacy of antidemocratic judicial review is a genuinely tough problem, and while Breyer pulls out some familiar answers -- transparency, minimalism, etc. -- and takes the predictable jabs at originalist and textualist approaches to constitutional interpretation, he does have a few somewhat-fresh insights.
My favorite example is his justification for judges adopting a rule of statutory interpretation that looks to Congress' purpose or intent in passing the law, rather than the bare text alone -- this helps the statute work as intended (a commonplace observation), and that's a good thing not only because it leads to more effective law, but also because it clarifies democratic accountability: voters should be able to hold legislators accountable for the laws they intend to pass, not the laws they pass as interpreted by courts who might mutilate them out of recognition by misreading drafting ambiguities.
The other noteworthy thing about the book is that I wonder whether it's a sort of concealed screw-you to the conservative wing of the Court. As mentioned above, Breyer's mainly concerning himself with outlining a theory for how the Court should decide cases to maximize democratic legitimacy and accountability. But almost all the modern examples he gives are of cases where he was in dissent. Obviously one of the nice things about writing a book is that you can claim, at length, that you were right all along, god damn it, so I can see the attraction of mostly sticking to dissents, but at the same time, the clear implication of these examples is that there's a way for the Court to be democratically legitimate, and the conservatives are systematically doing the opposite. Of course Breyer's far too polite to say that, even if it is consciously intended, but it's an interesting bit of subtext.
Oh, and I lied -- the third noteworthy thing is that after law school, I feel like I've got a good handle on the writing style of the nine justices of the Rehnquist court (I still find it very odd that only five of them are left), and for the most part the book didn't feel like it was quite in Breyer's style -- likely because he was trying to write for a more general audience and tone down the more lawyerly prose style, but it was still a bit jarring.
What makes the book interesting is that it's not just another attempt to explain the workings of the court to the general public; Breyer's sketching out a theory of how the court should decide cases in order to maximize the likelihood that the public will accept even very unpopular decisions. The democratic legitimacy of antidemocratic judicial review is a genuinely tough problem, and while Breyer pulls out some familiar answers -- transparency, minimalism, etc. -- and takes the predictable jabs at originalist and textualist approaches to constitutional interpretation, he does have a few somewhat-fresh insights.
My favorite example is his justification for judges adopting a rule of statutory interpretation that looks to Congress' purpose or intent in passing the law, rather than the bare text alone -- this helps the statute work as intended (a commonplace observation), and that's a good thing not only because it leads to more effective law, but also because it clarifies democratic accountability: voters should be able to hold legislators accountable for the laws they intend to pass, not the laws they pass as interpreted by courts who might mutilate them out of recognition by misreading drafting ambiguities.
The other noteworthy thing about the book is that I wonder whether it's a sort of concealed screw-you to the conservative wing of the Court. As mentioned above, Breyer's mainly concerning himself with outlining a theory for how the Court should decide cases to maximize democratic legitimacy and accountability. But almost all the modern examples he gives are of cases where he was in dissent. Obviously one of the nice things about writing a book is that you can claim, at length, that you were right all along, god damn it, so I can see the attraction of mostly sticking to dissents, but at the same time, the clear implication of these examples is that there's a way for the Court to be democratically legitimate, and the conservatives are systematically doing the opposite. Of course Breyer's far too polite to say that, even if it is consciously intended, but it's an interesting bit of subtext.
Oh, and I lied -- the third noteworthy thing is that after law school, I feel like I've got a good handle on the writing style of the nine justices of the Rehnquist court (I still find it very odd that only five of them are left), and for the most part the book didn't feel like it was quite in Breyer's style -- likely because he was trying to write for a more general audience and tone down the more lawyerly prose style, but it was still a bit jarring.
Want to read
September 16, 2010Fascinating interview with Terry Gross at http://www.npr.org/templates/transcri...
March 21, 2022
Breyer's "Making Our Democracy Work" is a enjoyable, if at times a bit technical, history of the Supreme Court and how it has decided cases rightly and wrongly. For modern Americans, the Court may be a bulwark against discrimination (the legacy of Brown v. Board of Education) or a break in the dam on the issue of abortion (depending on your abortion stance). It is little surprise that the Court has strained under this back-and-forth since the very beginning, attempting to preserve the freedoms of the Constitution while cognizant of contemporary American society.
Breyer helpfully summarizes cases dating back to Marbury v. Madison, and concludes with the War on Terror cases in connection with Guantanamo detainees. In the 21st Century, the Court appears more certain of its stature within the American constitutional system, but faces challenges from changing political winds and a Republican Party that strays further outside the bounds of law and constitutional norms.
How those issues are to be reckoned with is now in the hands of Breyer's successor and colleagues. For the last few decades, though, Americans should count themselves lucky to have had a justice devoted to living constitutionalism and protecting certain freedoms, but also, and much more importantly, for standing for a transparent, fair, and practical Supreme Court.
Breyer helpfully summarizes cases dating back to Marbury v. Madison, and concludes with the War on Terror cases in connection with Guantanamo detainees. In the 21st Century, the Court appears more certain of its stature within the American constitutional system, but faces challenges from changing political winds and a Republican Party that strays further outside the bounds of law and constitutional norms.
How those issues are to be reckoned with is now in the hands of Breyer's successor and colleagues. For the last few decades, though, Americans should count themselves lucky to have had a justice devoted to living constitutionalism and protecting certain freedoms, but also, and much more importantly, for standing for a transparent, fair, and practical Supreme Court.
August 27, 2024
Justice Breyer writes an interesting piece on not only judicial philosophy, but also on how our system of laws functions in concert with our system of representation. I can’t help but think I would have gotten more from this book if I were not a law student, so it’s hard to recommend it to people in my position. Having said that, I can easily recommend it to those without a background in law as a way of understanding one approach to our judicial system.
July 5, 2024
Very informative, great introduction to the Supreme Court. Argues that the court’s
decisions are not necessarily “better”, they are just literally “final”
decisions are not necessarily “better”, they are just literally “final”
August 12, 2016
This book was interesting, but I'm not sure who it's meant for. Is it meant for those studying the Constitution or in law school? If so, this book is a bit watered down. Is it for people who have no inkling of what the judicial process is? If so, he's assuming a lot about the general public's knowledge or tolerance for philosophical ideas being extolled. This book meets somewhere in the middle.
I enjoyed Breyer's take on the role of the courts in US government and I enjoyed his descriptions of the different ways of looking at the law. That being said, he was a bit dry and he used court cases that most people who are familiar with the SCOTUS would already have researched and reviewed.
One reason to read this book, though, is that he makes clear the role of the public in the judicial process. This was something that I never considered. Why do we follow the SCOTUS's decisions? Why should be active participants in our government? To me, I never really needed to ask myself why. I always found myself intrigued with the process. Also, I never considered how the SCOTUS is really just the tip of a huge iceberg.
I would have a hard time recommending this book, but reading a former supreme court justice's book was rather fascinating. I will probably need to re-read this in a couple of years.
I enjoyed Breyer's take on the role of the courts in US government and I enjoyed his descriptions of the different ways of looking at the law. That being said, he was a bit dry and he used court cases that most people who are familiar with the SCOTUS would already have researched and reviewed.
One reason to read this book, though, is that he makes clear the role of the public in the judicial process. This was something that I never considered. Why do we follow the SCOTUS's decisions? Why should be active participants in our government? To me, I never really needed to ask myself why. I always found myself intrigued with the process. Also, I never considered how the SCOTUS is really just the tip of a huge iceberg.
I would have a hard time recommending this book, but reading a former supreme court justice's book was rather fascinating. I will probably need to re-read this in a couple of years.
April 3, 2011
This was a book of essays by Justice Breyer on a number of important Supreme Court cases. He chose as examples both good and bad cases as well as old and new cases. Breyer provides some good insights into how the court works and how decisions are arrived at. He is especially good at juxtaposing different cases. For example, in his chapter on Brown versus Board of Education, which he sees as a good case, he makes reference to an earlier case in which President Jackson ignored the Supreme Court and permitted the expulsion of Indians from Georgia, to the great detriment of the rule of law as well as to the Indians. The book is written in general tones without much over specialist discussion of the legal details of the cases. There were some chapters that were especially informative - the ones on "separate but equal" doctrines and the Jim Crow laws come to mind. Overall a nice informative read.
January 17, 2011
Breyer's six interpretive tools: text, history, tradition, precedent, the purpose of a statute, and the consequences of competing interpretations.
November 22, 2023
Originalism has always appealed to me on an intuitive level. I think it is probably a part of human nature: we don’t like having words put in our mouths.
Other approaches seem deficient in comparison. Textualism is unsatisfying, as it leaves open the possibility of thwarting the intentions of those who write laws in an irritating, “ackshually” sort of way. “Ackshually, what you said technically means so and so.” Or, “Ackshually, people understand those words to mean so and so.” Well, I don’t care what the words mean or what people think they mean. (I’m a rather poor and unsteady speaker anyway, so I’m apt to muck it up a bit.) I only care about what I do mean, thank you very much. On the other hand, the kind of hip shooting, loosey goosey approach is probably even more suspicious. Sure, it’s fun to engage in creative hermeneutics, but I think it’s even more irritating for someone to commandeer my words to suit whatever purpose they desire than whatever it is that the nitpicky textualists do.
Unfortunately, Originalism is not without its defects. The author goes into some of the reasons: for example, clinging onto the intentions of lawmakers hardly makes for enduring law. Originalism is, in a word, totally unworkable. And it is workability that Breyer cares about. He wants to make our democracy work.
His approach, I feel, is very reasonable. With respect to statutory and constitutional interpretation, he respects intent but evades the pitfalls of Originalism. Instead of fixating on the specific intent of legislators, Breyer is concerned with purposes and how the consequences of a particular interpretation stay true to these purposes. When interpreting the constitution, Breyer is concerned with its values. Does affirmative action, for instance, advance the values of the 14th amendment? This focus on purposes, consequences, and values makes a lot of sense. It’s impossible to pin down original intent: our laws weren’t dreamed up by the intent of one man. It’s much easier to determine purposes and values.
Breyer touches on many more things that I won’t comment on. The book, unfortunately, was quite boring, but that’s more my fault.
Other approaches seem deficient in comparison. Textualism is unsatisfying, as it leaves open the possibility of thwarting the intentions of those who write laws in an irritating, “ackshually” sort of way. “Ackshually, what you said technically means so and so.” Or, “Ackshually, people understand those words to mean so and so.” Well, I don’t care what the words mean or what people think they mean. (I’m a rather poor and unsteady speaker anyway, so I’m apt to muck it up a bit.) I only care about what I do mean, thank you very much. On the other hand, the kind of hip shooting, loosey goosey approach is probably even more suspicious. Sure, it’s fun to engage in creative hermeneutics, but I think it’s even more irritating for someone to commandeer my words to suit whatever purpose they desire than whatever it is that the nitpicky textualists do.
Unfortunately, Originalism is not without its defects. The author goes into some of the reasons: for example, clinging onto the intentions of lawmakers hardly makes for enduring law. Originalism is, in a word, totally unworkable. And it is workability that Breyer cares about. He wants to make our democracy work.
His approach, I feel, is very reasonable. With respect to statutory and constitutional interpretation, he respects intent but evades the pitfalls of Originalism. Instead of fixating on the specific intent of legislators, Breyer is concerned with purposes and how the consequences of a particular interpretation stay true to these purposes. When interpreting the constitution, Breyer is concerned with its values. Does affirmative action, for instance, advance the values of the 14th amendment? This focus on purposes, consequences, and values makes a lot of sense. It’s impossible to pin down original intent: our laws weren’t dreamed up by the intent of one man. It’s much easier to determine purposes and values.
Breyer touches on many more things that I won’t comment on. The book, unfortunately, was quite boring, but that’s more my fault.
April 8, 2024
Justice Breyer envisions the courts working alongside other governmental institutions, drawing their interpretations not just from the wording of the statutes and Constitutional provisions, but also from the legislative intent with an eye towards outcome. He seeks a collaborative, non-adversarial relationship between the different branches of government. A big part of it is deference towards expertise: Other agencies are better-equipped to make most major decisions than judges are. The courts have a function to check excessive power and protect rights, maintaining the standard for constitutional values - but that hand should not be overplayed.
He begins by looking at the principle of judicial review, which is foundational for what follows. Then comes a survey of older SCOTUS decisions and related impacts - the good, the bad, and the ugly. The first part is mainly historical, looking at Andrew Jackson's defiance of the high court's upholding of Cherokee land rights, the infamous Dred Scott decision, and President Eisenhower's support for the court decision with the Little Rock Nine. It's interesting that he begins and ends the book with these kinds of historical surveys. The latter section includes a closer look at the Korematsu decision that upheld Japanese-American internments in World War II, and the Guantanamo verdicts that limited executive detention powers in the years of the second Bush Administration.
At times the book slips into detailed legal reasoning that can be hard for a layman to follow. Some of this is mitigated by a second appendix that gives a basic overview of court functioning; Breyer recommends reading it before diving into part II.
Overall this is a useful book, particularly for understanding some ideas of effective court functioning in the larger work of governance, the nature of some of the ideological tensions in the world of jurisprudence, and general hopes for a better democracy.
This book is dated. With the current risks of election interference, court credibility questions following the Trump Administration, and the Capitol riots, the title suggests room for a revised edition with attention to these issues.
He begins by looking at the principle of judicial review, which is foundational for what follows. Then comes a survey of older SCOTUS decisions and related impacts - the good, the bad, and the ugly. The first part is mainly historical, looking at Andrew Jackson's defiance of the high court's upholding of Cherokee land rights, the infamous Dred Scott decision, and President Eisenhower's support for the court decision with the Little Rock Nine. It's interesting that he begins and ends the book with these kinds of historical surveys. The latter section includes a closer look at the Korematsu decision that upheld Japanese-American internments in World War II, and the Guantanamo verdicts that limited executive detention powers in the years of the second Bush Administration.
At times the book slips into detailed legal reasoning that can be hard for a layman to follow. Some of this is mitigated by a second appendix that gives a basic overview of court functioning; Breyer recommends reading it before diving into part II.
Overall this is a useful book, particularly for understanding some ideas of effective court functioning in the larger work of governance, the nature of some of the ideological tensions in the world of jurisprudence, and general hopes for a better democracy.
This book is dated. With the current risks of election interference, court credibility questions following the Trump Administration, and the Capitol riots, the title suggests room for a revised edition with attention to these issues.
January 4, 2025
This is a great book by Supreme Court justice Breyer. The main theme is the question of trust between court and citizens, given the former is the least democratic institutions of government. Breyer gives us first examples of where the court had to make difficult decisions that did not vibe with the majority or with other branches like the executive, especially early on in American history. Breyer believe trust is created through habits and custom over a period of time, and thus the early days the court faced more scrutiny as to its role, for example the sample of the Cherokee Indians claimed to their own land in Georgia were viewed as fair but rejected by the state and ultimately not supported by President Jackson. The opinion was simply ignored. Other cases reviews are Marburg, dred Scott, Little Rock (Brown v ed). Breyer the. Goes on to describe how the court could conduct its reviews with pragmatic attitude. He emphasizes opinions that value working relationships with other institutions of governments, federal and state. He gives a few criteria, such as comparative expertise, subsidiarity, specialization, and precedents as ways that help the SC decide who is best positioned to make the best decisions of fact and law that the court should defer to. Finally Breyer reviews a few cases in the domain of individual liberty and uses value and proportionality (between two competing constitutional values for example) as important ways to reach its decisions. It shows how these were not well used in Korematsu and better used in the Guantanamo cases. Throughout the book and with a clear style, Breyer walks us through difficult and sometime technical areas of law, yet never loses sight that the courts opinions have real world consequences it needs to consider to, and ultimately should in order to keep the trust of the people. That is the core of Breyer pragmatic justice philosophy.
December 21, 2018
This book is filled with insights and arguments that are fascinating and relevant. The writing is clear, if a bit dry, as one might expect from an accomplished judge
Breyer begins with examples chosen to illustrate how the Supreme Court works, and how it is supposed to work. He makes the surprising point that it was far from clear in the early days of the country’s history that the court’s decisions would be followed by the other branches of government or by the public. He proceeds to make a good argument against the originalist approach, and in favor of a purpose-oriented rather than a purely text-oriented approach.
The discussion of the varying approaches to justice and the decisions made in particular cases is illuminating, if not exactly riveting. And the final conclusions on the limits of presidential power as it relates to judgements of the Supreme Court are more important than ever today.
Of course, those who most need the knowledge in this book are those who would wish to appoint judges in order to accomplish political goals. And unfortunately, they are probably the least likely to read it, but if the lessons described here can be disseminated even a bit, it’s at least a small step toward a public that is more informed about the workings of the court.
Breyer begins with examples chosen to illustrate how the Supreme Court works, and how it is supposed to work. He makes the surprising point that it was far from clear in the early days of the country’s history that the court’s decisions would be followed by the other branches of government or by the public. He proceeds to make a good argument against the originalist approach, and in favor of a purpose-oriented rather than a purely text-oriented approach.
The discussion of the varying approaches to justice and the decisions made in particular cases is illuminating, if not exactly riveting. And the final conclusions on the limits of presidential power as it relates to judgements of the Supreme Court are more important than ever today.
Of course, those who most need the knowledge in this book are those who would wish to appoint judges in order to accomplish political goals. And unfortunately, they are probably the least likely to read it, but if the lessons described here can be disseminated even a bit, it’s at least a small step toward a public that is more informed about the workings of the court.
January 9, 2022
In Making our Democracy Work, Justice Breyer expands upon his treatise Active Liberty with several interesting examples of how the Judiciary established its role, and how it needs to act to maintain credibility as the guarantor of liberties established in the Constitution. Justice Breyer's uses counter examples, such as Dred Scott, showing the Court doesn't always get it right (and history may hold one of the negative reviews here correct with a couple more counter examples).
I had hoped this work would expand a bit more on the role of the citizen in making our democracy work, but Justice Breyer really only pays lip service to this in the Conclusion. Still, illuminating the role of the weakest branch of government through the lens of some of our history's most important and controversial cases provides a fascinating peek into the function of the court.
The thoughtfulness that goes into deciding cases should make us all thankful that the Founding Fathers had the foresight to implement independent checks and balances in the American form of government.
I had hoped this work would expand a bit more on the role of the citizen in making our democracy work, but Justice Breyer really only pays lip service to this in the Conclusion. Still, illuminating the role of the weakest branch of government through the lens of some of our history's most important and controversial cases provides a fascinating peek into the function of the court.
The thoughtfulness that goes into deciding cases should make us all thankful that the Founding Fathers had the foresight to implement independent checks and balances in the American form of government.
April 17, 2024
I'll preface this by saying I am a fan of Justice Breyer - his demeanour, judicial philosophy, and diction. He's a thoughtful and elegant speaker and enthusiastically took up the torch against originalists/strict textualists (see his numerous public debates with Scalia).
This book is essentially Breyer waxing poetic about cases that have shaped and demonstrate his philosophy. I think he largely achieves his goal and presents some ideas that I've not considered before (i.e. how the courts fit into democratic accountability). It's clear that he thinks a lot about the court's role in a democracy and its relationship to other institutions and the public - something other judges ought to do...
However, I have to ding him for the writing. It seems like he either: a) hired a bad ghostwriter or b) tried to strike a balance between something for the absolute layman and trained lawyer. The individual chapters end up being hit or miss.
This book is essentially Breyer waxing poetic about cases that have shaped and demonstrate his philosophy. I think he largely achieves his goal and presents some ideas that I've not considered before (i.e. how the courts fit into democratic accountability). It's clear that he thinks a lot about the court's role in a democracy and its relationship to other institutions and the public - something other judges ought to do...
However, I have to ding him for the writing. It seems like he either: a) hired a bad ghostwriter or b) tried to strike a balance between something for the absolute layman and trained lawyer. The individual chapters end up being hit or miss.
September 4, 2018
As I concluded reading this book, the Senate took up a nomination for the Supreme Court. While there is much politics surrounding the hearings and eventual vote, do we understand the true nature of the Court and the judiciary. As Justice Breyer notes in his conclusion, too many of my fellow citizens have little understanding of the American governmental system. That's unfortunate. This book, however, helps us understand the court, its evolution, its controversial rulings, and differing judicial philosophies. Breyer doesn't support the originalism or textualist view that currently is regnant on the Court. Why? Because it doesn't take into consideration the purpose and consequences of the Constitution and our Laws. In other words, it fails to be true to the democratic principles upon which the nation was founded. It's a good book, that needs to be read.
September 5, 2019
A great book by a surprisingly good writer. I was prepared to wrestle with this text, but found the reading easy and the insights were refreshing. Breyer does a good job of marrying the awesome power of the Supreme Court to the responsibilities of our political institutions and the court itself to engender the people's trust in that power. However in light of the way the Supremes Court has been politicized by both parties in the last decade and the duplicitous treatment of Supreme Court nominee Merrick Garland, and later outrageous political comments made by Kavanaugh during his confirmation, trust in the Supreme Court is likely damaged beyond repair. The three legged stool of our government now has at least one broken leg, and as we all know, a two legged stool cannot support anything.
December 21, 2021
Not going to lie; this book is DENSE. Justice Breyer does his best to simplify things, but constitutional law is constitutional law. Despite being a "one chapter a night" kind of read, it gives a great insight into both the US constitutional history and his own process for deciding a case.
Oddly enough, an inspiring read? The law is complicated machinery, but Breyer makes the case for an evolving judicial system that is flexible enough to withstand the passage of time while being sturdy enough to support a nation on its shoulders. Highly, highly recommended... if you can stay awake long enough to read it.
Oddly enough, an inspiring read? The law is complicated machinery, but Breyer makes the case for an evolving judicial system that is flexible enough to withstand the passage of time while being sturdy enough to support a nation on its shoulders. Highly, highly recommended... if you can stay awake long enough to read it.
July 17, 2017
Personal morality might affect opinions of justices but they are mandated to rule on the text and meaning of the Constitution and acts of Congress. So proceedings of courts end up being debating contest that, at least on the surface, ignore morality in favor of fine points of argument. I am quite liberal but enjoyed hearing Scalia's arguments. We're not likely to see Justice this side of Heaven. Come Lord Jesus.
July 25, 2017
Pretty discouraging. the court is going to be like all lawyers, parsing words and exhibiting forensic skills. Personal sense of justice may influence decisions but technical arguments will prevail.
July 4, 2018
great book...
...enjoyed reading as a non-lawyer. appreciate Justice Breyer being able to explain both sides of an issue. we need more of that from leaders and the media.
...enjoyed reading as a non-lawyer. appreciate Justice Breyer being able to explain both sides of an issue. we need more of that from leaders and the media.
January 10, 2019
Easy to read, great insight into our system written by a wise Judge.
Non-Partisen, just good historical analysis of some landmark cases presented in an accessible fashion.
July 22, 2022
Really outstanding book. Very consumable and educational on the purpose of the USSC. Also, it does a great job of discussion Justice Breyer's judicial philosophy. Worth your time
May 19, 2024
more opinions from da judge.
November 1, 2024
A thought-provoking book that discusses how the Supreme Court should make decisions and offers a grounded and humble approach to jurisprudence.
December 11, 2010
I enjoyed Justice Breyer's overview of the role the Judicial branch plays in a successful democracy. In a society where decisions are made by the will of the people, there is potential for minority groups to be oppressed by the majority. When this happens, our values are undermined and the success of the union itself becomes compromised. American history is full of examples; slavery, Jim Crow segregation, Japanese internment, search and seizure laws, Indian affairs, etc.
Fortunately, “our system of democratic government is not a pure majorian democracy, but majorian democracy with boundaries [by the Constitution]... to ensure to individuals and minorities against the majority's desires.” p 4
The Judicial branch provides a vital check in our system. To work properly though it must be independent and loyal to the law alone, not willing to bow to political pressures or public opinion. Like so many other things in history its ability to perform this duty has not been guaranteed, at times the Legislature, the public, and even the President has defied its authority. Decisions like Cherokee Nation v. Georgia, Dred Scott, Korematsu, and Brown v. Board of Education have challenged the system, but in turn helped us evolve towards the More Perfect Union we are collectively trying to achieve.
We the People have many responsibilities in this endeavor, chief among them is to become informed and educated. “A public that does not understand the judiciary, its role in protecting the Constitution, and the related need for judicial independence may act in ways that weaken the institution”. p 218
Fortunately, “our system of democratic government is not a pure majorian democracy, but majorian democracy with boundaries [by the Constitution]... to ensure to individuals and minorities against the majority's desires.” p 4
The Judicial branch provides a vital check in our system. To work properly though it must be independent and loyal to the law alone, not willing to bow to political pressures or public opinion. Like so many other things in history its ability to perform this duty has not been guaranteed, at times the Legislature, the public, and even the President has defied its authority. Decisions like Cherokee Nation v. Georgia, Dred Scott, Korematsu, and Brown v. Board of Education have challenged the system, but in turn helped us evolve towards the More Perfect Union we are collectively trying to achieve.
We the People have many responsibilities in this endeavor, chief among them is to become informed and educated. “A public that does not understand the judiciary, its role in protecting the Constitution, and the related need for judicial independence may act in ways that weaken the institution”. p 218
December 10, 2016
Breyer makes a clear and well reasoned presentation for the role he sees for the US Supreme Court: a bulwark of Constitutional guarantees against the excesses of the legislative and executive branches. In particular, he's interested in the sociology of why the People of the United States have come to accept the judgment of the Supreme Court, even when its rulings seem to contradict their own desires. Toward this end, he studies some of the Supreme Court's worst decisions, when they allowed themselves to be swayed by popular (racist) opinion, delivering verdicts that let stand monstrous injustices by the powerful against the weak. He also examines cases where the Supreme Court attempted to deliver justice but was thwarted by the President (Jackson murdering the Cherokee), and then later supported by the President (Eisenhower delivering integrated education).
I think in the final analysis, he believes the People follow the Court because they believe it is just; that the work the Court does to explain its rulings somehow sways the public to go along even when they disagree. But I think Pinker's Better Angels may lay out a better explanation, showing that modern people are simply more apt to see institutional solutions to problems as being more valid than the alternative (violent solutions).
If you're looking for an accessible fun-to-read introduction to the Supreme Court, its function and its history, this is a great place to start. If you're looking for more in-depth technical analysis, this book is aimed at a lower level that may disappoint.
I think in the final analysis, he believes the People follow the Court because they believe it is just; that the work the Court does to explain its rulings somehow sways the public to go along even when they disagree. But I think Pinker's Better Angels may lay out a better explanation, showing that modern people are simply more apt to see institutional solutions to problems as being more valid than the alternative (violent solutions).
If you're looking for an accessible fun-to-read introduction to the Supreme Court, its function and its history, this is a great place to start. If you're looking for more in-depth technical analysis, this book is aimed at a lower level that may disappoint.
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February 9, 2016Justice Breyer argues for a nuanced approach to decision-making, which in interpreting the Constitution and interpreting federal statutes looks not at one but a number of different factors, namely "history, traditions, precedent, purposes and related consequences." He emphasizes the need to be practical, and the importance of having the Supreme Court "complement" the other two branches of government, each having its own role. He points out that the Supreme Court's power of "judicial review," whereby it can overrule the actions of the Legislative and Executive branches is not something to be taken for granted (and indeed wasn't always so) and that it can only be maintained via the Court's actions in strengthening democracy and earn the respect of the citizenship. He therefore attaches great importance to the reasoning that supports the Court's opinion, since good and sound reasoning is what distinguishes an objective from the purely subjective.
Seen in context, this book is clealry an attempt to counter-react other tendencies in the court, such as those of "traditionalists" whose interpretations of the Constitution would return us to the 18th century, or "activists" who are intent to carry out their own particular agenda.
Seen in context, this book is clealry an attempt to counter-react other tendencies in the court, such as those of "traditionalists" whose interpretations of the Constitution would return us to the 18th century, or "activists" who are intent to carry out their own particular agenda.
March 10, 2014
Continuing to read several books, this one included. I know of only two Supreme Court Justices who wrie so well and openly. Stephen Breyer and Sandra Day O'Conner. Why the others don't believe that the American People either want or need to know how they think,how they perform their duties and who they are is beyond me. I haven't always agreed with Justice Breyer's decisions, but After reading. Much of his book, I think maybe he hasn't always been happy with his rulings.
One thing I keep coming back to is his idea that the American People are an evolving society, the constitution must also keep up with our society.
Who among the founding fathers knew anything about intellectual property, bioethics or same sex marriage? These are the concepts and ideas that the Supeme Court wrestles with.
I also was impressed that in his 17 years or so on the bench, he has never witnessed an occasion where a justice in private raised their voice or became angry. It certainly isn't a case that they lack passion, but they put their responsibilities and duties before personal pride. We are fortunate as a nation to have all of them on the bench.
One thing I keep coming back to is his idea that the American People are an evolving society, the constitution must also keep up with our society.
Who among the founding fathers knew anything about intellectual property, bioethics or same sex marriage? These are the concepts and ideas that the Supeme Court wrestles with.
I also was impressed that in his 17 years or so on the bench, he has never witnessed an occasion where a justice in private raised their voice or became angry. It certainly isn't a case that they lack passion, but they put their responsibilities and duties before personal pride. We are fortunate as a nation to have all of them on the bench.
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