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Making Our Democracy Work: A Judge's…

Making Our Democracy Work: A Judge's View (Vintage) (edition 2011)

by Stephen Breyer

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180665,840 (4)10
Title:Making Our Democracy Work: A Judge's View (Vintage)
Authors:Stephen Breyer
Info:Vintage (2011), Edition: Reprint, Paperback, 288 pages
Collections:Your library
Tags:constitutional law, politics, political science

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Making Our Democracy Work: A Judge's View by Stephen Breyer



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Pleased by the way that the book ends by stressing the need for an informed citizenry. ( )
  davevanl | Oct 22, 2015 |
  ecw0647 | Sep 30, 2013 |
Excellent overview of some of the court cases of the past and how the court interacts with the public and the other two branches of the government. It's also interesting to consider this book beside Lazarus's Closed Chambers, which suggests that the court is oftentimes not collegial. Stephen Breyer (a current US Supreme Court justice) indicates that the discussions are collegial and that the justices do their best to see the value in all of the other justices points of view. ( )
  aevaughn | Mar 18, 2013 |
Reviews of cases are the book's strong points. Part II, which is light on that element, focusing more on civics discussion, is a bit tedious. The author could have been a bit more forthcoming about supreme court processes -- does anyone really believe Bush v. Gore had no political overtones for the Court? ( )
  dono421846 | Oct 14, 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. ( )
  kant1066 | Feb 16, 2012 |
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Amazon.com Product Description (ISBN 0307269914, Hardcover)

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.

(retrieved from Amazon Thu, 12 Mar 2015 18:06:44 -0400)

(see all 2 descriptions)

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.… (more)

(summary from another edition)

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