Carol Nackenoff

In recent years, the public has been treated to a number of books by current or recent Supreme Court justices. Among this group, Stephen G. Breyer stands out as an especially prolific author. As a former professor at Harvard Law School with a specialty in administrative law, Justice Breyer had authored or co-authored several books long before his nomination to the court. Since joining the court, Justice Breyer has published more broadly about the court’s place in democratic governance. Making Our Democracy Work follows five years after the publication of Active Liberty (2005).

The earlier volume sought to establish that the Constitution aimed at maximizing liberty, arguing that its efforts to create democratic political institutions will succeed only if the public actively participates in the nation’s political life. Active Liberty can be viewed as a counterweight to Antonin Scalia’s A Matter of Interpretation (1997) and to other writings by this outspoken conservative justice. This new book argues that the people need to understand the court and that the court must act in such a way that the public will accept its decisions, for acceptance is never a sure thing. This second point means that the court must respect other branches of government, must think about comparative specialization and must be pragmatic. He argues that workable decisions must be widely acceptable ones.

Justice Breyer positions himself as a liberal champion of judicial restraint. He speaks of an attitude of deference to other decision makers. If measured by the number of pieces of congressional legislation he voted to strike down, that portrait would seem to be rather accurate. An op-ed piece by Paul Gewirtz and Chad Golder (The New York Times, 7/6/05) entitled “Who Are the Activists?” ranked Breyer last in this measure of activism among all the justices in decisions since he joined the court (membership had then been constant since 1994).

A corollary to Justice Breyer’s first argument is that the people need a court they can understand. While this claim does not differentiate him from far more conservative legal scholars, the difference is in what this means. Robert F. Nagel, for instance, has argued in Constitutional Cultures that the public wants and needs a constitution with a relatively plain, stable meaning—not one that varies with a plethora of tests and doctrines invented by the legal community and the judiciary. In Nagel’s narrative, an overactive Supreme Court, aided by the legal community, has usurped a great deal of public policy-making power and stands in an antagonistic relationship to the political culture. For contemporary conservatives, the judge should stick to text and the original public meaning of that language.

Justice Breyer, to the contrary, firmly believes that the public wants and needs pragmatic constitutional interpretation—an interpretation exercised by expert technicians who have to weigh and balance a number of difficult considerations that don’t have easy answers. A workable constitution is one that allows problems to be solved in a way that the public, as well as other governmental institutions, can find acceptable. Justice Breyer argues that justices must think about purposes and consequences of a statute in reaching workable decisions. He believes the advantages of his more flexible approach to creating a workable constitution include “legislator empowering” versus “judge empowering” decision-making, transparency and rational explanation, and greater rights protection.

Part I of this book considers, through a history of judicial review, how the public gradually came to accept the court’s decisions as authoritative. Distinct chapters offer concise and good explorations of key cases in that history, from Marbury v. Madison to Bush v. Gore, along with the political difficulties these cases and decisions posed.

Part II develops the argument that the court should “recognize and respect the roles of other governmental institutions—Congress, the president, executive branch administrators, the states, other courts—and it should take account of the experience of each.” This will help the court maintain the public trust it has acquired. Breyer examines relations between the court and each of these institutions in turn. The chapter that considers administrative agency rulemaking is especially good—not surprising, given the author’s academic specialty. Breyer also argues that in weighing the merits of stability versus change as the court confronts its own past decisions, stability is frequently the wiser choice.

Part III offers an argument about how the court preserves permanent constitutional values and principles regarding individual rights and liberties while confronting other governmental institutions. Special interpretive tools he endorses for determining where and how to apply rights-safeguarding provisions are the use of values, “the constitutional analogue of statutory purposes” and proportionality, or balancing, “when a statute restricts one constitutionally protected interest in order to further some other comparably important interest.” What follows are interesting discussions about Breyer’s view on the recent Second Amendment cases, national security issues as seen through a re-examination of the World War II Japanese relocation cases, and considerations about presidential power and accountability through consideration of the post-2001 Guantánamo Bay detention cases.

In claiming that “in fits and starts, the Supreme Court came to be accepted and trusted as a guardian of the Constitution,” Breyer may believe the court has more power to be the final arbiter of constitutional disputes than a good number of contemporary scholars of law and courts believe it has. Certain chapters, such as the one on Korematsu and Japanese internment, do make clear that the court is not always the final word on constitutional meaning. In Justice Breyer’s world, the court patrols constitutional boundaries. In his view, Congress (and the court) have done a good job “to protect the states from federal efforts to accrue power at their expense.” Conservatives might well disagree. Readers might well ask whether, in a highly polarized political climate, Breyer defines the people as those parts of the public who agree with him.

Justice Breyer’s writing is lively and engaging. It is extremely accessible and assumes no prior knowledge of the Supreme Court as an institution or of its major decisions. A reader who is not well read on the Supreme Court is likely to be richly rewarded for reading Making Our Democracy Work. While this book does not break new ground, it is a fine read and should encourage thoughtful reflection and discussion.

Carol Nackenoff is a professor of political science at Swarthmore College.