"Only one-third of all Americans can name the three branches of government (two-thirds can name a television judge on American Idol); only one-third of eighth graders can describe the historical purpose of the Declaration of Independence; and three-quarters of our population does not understand the difference between a judge and a legislator." This statement comes at the very end of Supreme Court Justice Stephen Breyer's new book, Making Our Deomcracy Work: A Judge's View. It explains why he wrote this simple and elegant work: He wants people to understand what the courts do.
I picked up the book without great expectations, deciding to read it almost out of a sense of professional responsibility. When a Supreme Court justice writes a book on the law, I'm reading it. I want to see what the world looks like from atop the law's great pyramid. But I read warily at first. Breyer's last work, Active Liberty, was a ho-hum sort of affair: I warmed to it only because it served as a sort of common sense counterweight to the new scholasticism of some of the other justices who peddle a brand of necromancy known as originalism. But I was sorry when this book ended. It renewed an excitement I had about the law and its processes that I have not felt in some time.
Breyer writes in calm and measured tones throughout this 220-page volume. There is a brief appendix for non-lawyers that describes how the Supreme Court gets a case. At no point in the text does Breyer name those with whom he disagrees. Even the footnotes are restrained. Such is the temperament and demeanor of this quintessential judge.
The Court hears only about 80 cases a year out of almost 340,000 filed annually. The appellate courts here about 60,000 cases a year. Once a case reaches the Supreme Court, the issues are often rarefied and unsettled. Litigants, and the nation, look the high court to determine unsettled areas of the law. It is an oracle or sorts, yet lacking the rites of Delphi.
What tools should a judge use in answering questions brought to the Supreme Court?
Breyer is a pragmatist. He implicitly contrasts this view with that of the so-called originalists. He notes that originalism promises far more than it delivers.
"Originalists hope that judges will find answers to difficult constitutional questions by proceeding objectively, almost mechanically, to examine past historical fact. An objective approach will reassure the public that the Court's interpretation reflects what history shows to have been the framers' detailed intentions, not the judge's own.... This historical approach, however, suffers serious problems. For one thing, it is less `objective' than one might think. When courts consider difficult questions of constitutional law, history often fails to provide specific objective directions.... If there is no historical material directly on point, what should the Court do? Create historical `assumptions' designed to draw answers from a historical void? Or refuse to answer a question of practice importance ... [?]," Breyer writes. Originalism, Breyer argues, proceeds as though judges had not purposes of their own. Sure, he makes something of a strawman of a doctrinal approach considerably more nuanced than this, but his criticism remains valid nonetheless.
Orignalism reeks of the very sory of activism it purports to disdain. All judges read and interpret the text of the Constitution. The document does not speak for itself. A hightly stylized reading of the text tethered to methodological tenets designed to make plain the intent of those long since dead is about as "active" a way of approaching the task of interpretation as any other method. To pretend otherwise is to avoid the truth, or to indulge in the sort of sentimentality that renders God the author of the Bible.
Breyer's pragmatism permits a frank assessment and confrontation of the judiciary, and a judge's role, in interpreting the Constitution in light not just of text, history and tradition, but also in terms of purpose and, gasp!, values. A Court seeking to retain a sense of legitimacy in society can ill afford to retreat to cloisters. When we read a Supreme Court decision we intend to do more than smell the wick.
Breyer's text won't persuade originalists, and it is not intended to do so. The work is written for non-;awyers, although lawyers can read it with profit. It is a common sense sort of assessment of what a judge does. The Court resolves administrative disputes, showing deference to expert fact-finding; it polices the boundary between state and federal governments; it sets limits on what the government can and cannot do to individuals. These functions are simple to recite, but far from easy to perform.
Breyer worries that an American public that fails to understand the role of the Court in American life will simply refuse to view it as a legititmate branch of government. The Court's power, after all, has not always been accepted. President Andrew Jackson once, perhaps apocraphally, reacted to an early Court decision honoring native American Indian treaty rights by quipping: "[Chief Justice] John Marshall has made his decision, now let him enforce it."
Modern times reflect a greater acceptance of the role of the Court to have the final say in what the law is. President Dwight D. Eisenhower seized steel mills during the Korean War. When the Court ordered the mills returned to their private owners, Eisenhower obeyed the order. And let us not forget that President George Bush the Younger stood down when the Court ordered that habeas corpus relief was available to detainees at Guatanamo; he did not suspend the writ, as did Abraham Lincoln, an act of dubious legitimacy.
The last two chapters of Breyer's excellent little volume recite the Court's sorry experience sanctioning the treatment of Japanese-American citizens in the wake of the Japanese attack on Pearly Harbor. One hundred and twelve thousand persons, seventy thousand of them citizens, were summarily rounded up and held in what amounted to concentration camps. The Korematsu and Hirabayashi decisisions are potent reminders of how tenuous our hold on liberty can be in times of crisis. Yet Breyer reminds us that the rule of law and role of the Court in checking executive power remained alive in our most recent national crisis following the 9/11 suicide attacks. Much though the our treatment of the detainees at Guatanamo remains a national disgrace, at least in my view, although not in Breyers, the four habeas cases to reach the Supreme Court placed limits on what the executive branch and the legiislative branch could do. Breywer, the pragmatist, regards these cases as signs the system still works.
I liked this book for its civilized tone, clear prose and absense of polemical rancor. It is not the sort of book a scholar, a legal practitioner or a pundit would write. That's because Breyer not only talks the talk of justice, he walks the lonely walk of a man deciding the great issues of the day. I say read Making Our Democracy Work. It will only take a couple of hours to move from one cover to the next. Along the way, you will get a feel for a man who cares deeply about his craft and his unique role in assuring that our democracy, though frayed and frazzled by the complexities of our time, remains vibrant.