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Judicial Democracy

The problem with Justice Breyer’s recent book begins at the second sentence:  “The Constitution’s framers and history itself have made the Court the ultimate arbiter of the Constitution’s meaning as well as the source of answers to as multitude of questions about how this vast, complex country will be governed.”

There is a lot to unpack in that extraordinary claim, including the meaning of “history itself” and how the Court became not only an interpreter of the Constitution but also the “source of answers” for how we live together as citizens of a republic.  But first, a little background.  Justice Breyer has served on the Supreme Court since 1994, when he was nominated by President Clinton and subsequently confirmed.  Prior to that he served for almost fifteen years as an appellate judge on the First Circuit Curt of Appeals, which covers parts of the Northeast.  Although he never practiced in business or in a private law firm (a norm increasingly common across the federal judiciary), he has authored influential works on administrative law, and has become known for a flexible pragmatic approach to judging.

Breyer quickly took a position on the liberal side of the Court, and is often contrasted with Justice Scalia as providing intellectual heft for liberal judges.  An earlier book, Active Liberty, which was published in 2005, advanced the thesis that the goal of courts, especially the Supreme Court, should be to promote democracy, a term he leaves frustratingly undefined.  He continues that theme in Making Our Democracy Work, which tries to explain, largely in layman’s terms, how the Court works and how his own pragmatic approach explains the best traditions of the Court.

Making is divided into three broad sections.  “The People’s Trust” sets out Breyer’s case for holding the Supreme Court as the only institutional organ charged with definitive interpretations of the Constitution; “Decisions that Work” lays out examples of areas in which Breyer believes his theory of judicial review have successfully worked; and the last chapter, “Protecting Individuals” raises questions of individual liberty and government power.

Breyer writes in clear prose, and his book is structured, mostly, around discussion of individual cases for a common reader unused to legal arcana or technical language.  And he wants to address a central point:  how can the Court maintain the confidence of the American people?  He notes for example, that there have been instances in the past, such as the Cherokee displacement cases, where the people did not listen to the Court’s decision.  In others, such as Brown v. Board of Education, other arms of the government needed to enforce the Court’s decision.

The cases he selects are, in some sense, the regular canon of liberal law professors;  Dred Scott, Brown v. Board of Education,  and Korematsu, for example, and ending with recent cases surrounding holding suspected terrorists or enemy combatants at Guantánamo.  There is no mention of Roe v. Wade or Planned Parenthood v. Casey, and no sustained discussion of the Court’s religious liberty jurisprudence or its holdings regarding corporations or substantive due process.  Breyer uses his case examples in a way anyone who went to a liberal law school will recognize:  the nation slowly unfolded to a recognition of the Court’s central role in American legal and political culture, and although Dred is bad (and Lincoln’s opposition to it ultimately bad as well, because it undermines the final authority of the Court), Brown is good and therefore we can take comfort in justifying ever after the Court’s exercises in social engineering.  The difficulty is that Breyer does not explain why – other than appealing to a vague sense of liberal morality – why we should choose one decision over the other, or why, more important, such wrenching cases need to be precedential for the proposition that the Court is the ultimate “source” for all answers regarding how we live in America.  As Breyer realizes, the Court cannot enforce decisions on its own, and the Court does make mistakes, as in Dred.  Breyer simply seems to take as evident that a modern liberal court will be more right than wrong, and so we should continue to abide by all its decisions lest national disaster strike.

Breyer argues that “American public officials and the American public have come to accept as legitimate not only the Court’s decisions but also its interpretations of the Constitution.  The public has developed the habit of following the Court’s constitutional interpretations, even those with which it disagrees.  Today we find it as normal to respect the Court’s decisions as to breathe the air around us.”  Breyer considers this subservience to nine unelected officials a step forward for democracy and liberty, and argues that each generation, through proper education, must learn how “our constitutional government works.”  But this assumes too much:  every year millions of people gather to protest one particular decision of the Court that they consider not only unconstitutional but also deeply immoral.  That decision, as Hadley Arkes and others have argued, has actually reduced respect for the Court and its opinions.  This challenge goes unmentioned by Breyer.

To show that the Court must also do its part, Breyer sets out a “pragmatic approach” that focuses on a statute’s purpose and consequences (rather than its text and history) to assist judges.  He distinguishes this from an “originalist” approach because he finds that history gives no true answers and that even if it did, sometimes our (that is, the Court’s) understanding of the underlying values of the Constitution should trump.  But too often a simple preference for government action seeps in.  Breyer would have upheld the Washington DC gun prohibition the Court rejected in Heller because the value ostensibly protected, “life itself,” was too compelling even though as Breyer stated, he could not tell if the ban actually worked.  On the other hand, opponents of Roe equally argue “life itself” is at stake, yet Breyer in this book is silent on how a judge would rule in that case.  Similarly, Breyer dissented from the Court’s 1995 Lopez decision, in which it overruled a law banning guns near schools, the first rejection of Congress’s power under the Commerce Clause in decades.  Although most treated that decision as a victory for federalism and therefore for a system of ordered liberty, Breyer would have deferred to Congress to make the “empirical” determinations of whether such laws affected interstate commerce.  From his study of administrative law, Breyer surely knows the compromises and lobbying that go into such legislation, so his simple trust in Congressional “experts” seems quaintly misplaced here.

Anticipating the objection that no one can assume which values or purposes might have motivated the actual Congress, Breyer posits a “reasonable member of Congress” to which the Court can attribute purpose.  Although Breyer is correct that sometimes Congress will avoid its responsibility to write clear legislation in the hope that the Court will interpret the law for them by deriving some purpose or knowledge of consequences, Breyer’s approach simply agrees to take that responsibility from them, which does not advance either liberty or representative government.  Forcing Congress to write clear statutes might force them to consider the flood of legislation they do pass, which would increase the sphere of liberty for ordinary citizens.  Breyer’s having the Court step in, although beneficial perhaps in individual cases, is not helpful in the long term.

Making presents a vigorous case for a kind of liberal jurisprudence that is perhaps less ideological than that evident in the Warren Court or law school seminars in the 1980s.  However, it does not answer the central question, upon which that liberal jurisprudence is based, as to how deferring to the Court’s decisions advances the cause of liberty or democracy.

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