Stephen Breyer

Democracy feels fragile these days. I shouldn’t feel this as deeply as I do since it’s always been true. From Benjamin Franklin to Ronald Reagan, our most serious leaders warn that freedom is never more than one generation away from extinction, that we have a republic if we can keep it. Frankly, liberty has always felt normal to me, if not inevitable; and this despite the fact that everything I know suggests that self-government is a thin membrane stretched taut across a relentless, show more primeval lust to dominate.

Twelve years before his retirement, Supreme Court Justice Stephen Breyer published “Making Our Democracy Work,” a precise and cogent argument for his view of how the Supreme Court serves to keep that lust from breaking its constitutional constraints. Though I consider myself politically conservative, and though Breyer aligned with the liberal wing of the Court, I always looked forward to his thoughtful and lively lines of questioning. I liked the guy in spite of myself. This grudging admiration is a good analogue for the key that unlocks Breyer’s judicial philosophy: that sharing a nation requires trust and good faith even between people who otherwise see the world differently.

Breyer argues for a pragmatic judicial philosophy that weights values and consequences more heavily than a text’s original meaning. Through chapter-length studies of four Supreme Court decisions, he discloses the Court’s dirty little secret: that much of the deference we give it is a gentleman’s agreement since the Constitution never grants the Court the power of judicial review. The Court itself reasoned its way there in Marbury v. Madison, and on that basis gradually assumed its role as arbiter of what the Constitution means. This role has proved a stabilizing feature of American life. Because we all agree to accept both the Court’s reasoning about its powers and its decisions as final, we choke down even unpopular verdicts rather than turning to renegade legislation, a reckless executive, or mob violence.

That’s all very unsettling in an age of mutual disagreement and acrimony. I can easily imagine a Supreme Court that can’t read the room, churns out decisions that appear to slice and dice the Constitution along partisan lines, and fumbles public trust so badly that people start weighing the benefits of this bargain we’ve struck. What happens if the Supreme Court suffers such a severe crisis of legitimacy that the meaning of the Constitution itself becomes a loose football? This is the unnerving specter that informs both Breyer’s judicial philosophy and the final two parts of the book.

For Breyer, the Supreme Court can best steward its legitimacy and help make democracy work through a pragmatic approach to law. Rather than opening a dictionary or lashing ourselves to 18th-century modes of thought, a Supreme Court justice should ask himself two questions: what societal value were the Framers trying to privilege by means of a given statute, and will the consequence of my decision support that value or make it harder to achieve? Further, how can the Court best discharge its duty as one of three coordinate branches, defer to the proper powers of Congress and the Executive, constrain their excesses, and protect individual liberties against undue intrusion? Balancing these priorities against each other helps the judge arrive at opinions that are faithful to the intent of the Framers and acceptable to society at large.

By contrast, a narrowly textual and originalist approach is at once too vague and too precise. On the one hand, it’s often difficult or impossible to recover the mental constructs of a statute’s authors at the time they wrote it. This may encourage a judge to project his own beliefs into the past and call it history. On the other hand, the inferences we do draw may have undesirable ends. An example Breyer uses twice is that of flogging in the Navy. This was considered neither cruel nor unusual when we enacted the Eighth Amendment, so should we allow whipping on naval vessels since this was allowed by the original understanding of the text? Textualism and originalism may promise superior controls on interpretation, but aren’t flexible enough to account for the way societies change. By placing greater weight on values, a judge can render decisions that are both faithful to the intent of the law and acceptable to society as it exists today. This bolsters the Court’s legitimacy, stabilizes society, banks goodwill for occasions when the Court must make an unpopular finding, and makes democracy work well.

It’s easy to turn these objections around. When Breyer considers the value behind a law, and rules in favor of that value rather than getting tangled in the words, what prevents him from projecting his own preferred outcome just as much as an originalist? His answer is the song I’ve been singing this whole time: good faith and mutual respect is more important than we realize. The saving grace of pragmatic judicial decisions, says Breyer, is that they must be reasoned and published for all to see. If a judge is pulling verdicts out of his partisan pocket, then he’ll be exposed as partisan for all the world to see.

Breyer never explains why this is a decisive check on a pragmatic judge but not on an originalist, but perhaps that’s not the most important feature of his thought. He obviously assumes that a judge who reasons in good faith will want to be known as a good-faith judge who reasons well, and that the prospect of public shame is a sufficient check on complete subjectivism. Breyer thus presumes the existence of a fraternal society where folks on different teams are also, by and large, on the side of truth, justice, and the American way.

I don’t think he’s wrong to make this presumption, because don’t most of us want this? After all, one of the most famous Supreme Court friendships was that between the originalist Antonin Scalia and the more pragmatic Ruth Bader Ginsburg. Neither approach is wicked and each has much to commend it. Breyer argues well for his approach as one that makes democracy work. Whether I agree with him or not, I can hope with him that we continue to live in a world where good faith, mutual trust, and having a judicial philosophy matter. show less

This is a consistently interesting book, much more so than one would have expected from the reviews in major papers following its initial release.

The book is about conflict of laws, first between the judicial and political branches of the American government, and then between the laws of the U.S. and the laws in the rest of the world. None of the conflicts arise from simple problems. The law rarely provides a black-and-white line, which is of course why so many cases need to be adjudicated, show more and why the courts so often have split decisions.

In the U.S., there have often been challenges to exercises of executive power by the President. How does the Court decide if the President has overstepped the limits of the Constitution? In previous eras, the Court was reluctant to decide: the President, after all, is privy to a host of considerations, including secret intelligence, treaties, and sub rosa agreements with other governments about which the Court does not and cannot know. In recent years, however, the Court has jumped into the fray, especially with cases arising out of the capture and trial of international terrorists in general, and the prison in Guantanamo in particular. Cases involving terrorists are especially interesting because most precedent involving the use of extraordinary powers by the executive pertains to specific, time-limited wars. In modern times, the war of terror is constant and threats diffuse. How then should executive power be contained or at least balanced?

Then there are the many cases arising out of the globalization of the economy. As Breyer observes about commerce:

“…national markets are now so interconnected and integrated that the most ordinary commercial transactions can involve a host of different activities and entities across the globe.”

How, for example, are American laws to be applied with respect to companies which have operations, sales, manufacturing, and distribution spread around the globe, and can be owned by holding companies in the U.S. or abroad, or may have labor outsourced in the U.S. or abroad, or may import parts and components from anywhere? What about the case of shoddy goods made in, say, Belgium for an American company and shipped to the U.S. on a ship manufactured in the Netherlands but owned by the United Kingdom? Or what about securities fraud committed by a holding company overseas that owns an American company? Or a conspiracy that takes place over the internet? If there is a perceived infringement of the law at any stage in the process at any location, who can be found libel and in which country’s courts? And how might the ruling of one country’s courts affect international relations?

Finally, there is the somewhat bizarre existence of the Alien Tort Statute, enacted by Congress in 1789 and giving federal district courts original jurisdiction "of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States." Although the statute was mostly ignored for the first two hundred years after its passage, since 1980 it has gotten new life, which has opened a whole new international can of worms.

Breyer also argues that the need for courts to understand technical as well as legal dimensions of the world and how other laws intersect with our own is increasingly critical. There are a number of international courts now in operation, but their success depends on the cooperation of nations which agree to hold their judgments binding. The United States, for example, is not one of the 122 nations agreeing to abide by the findings of the International Criminal Court (ICC). The United States is a party to the treaty that created the International Court of Justice (ICJ), but as one legal scholar notes (Sean D. Murphy, The United States and the International Court of Justice: Coping with Antinomies in THE UNITED STATES AND INTERNATIONAL COURTS AND TRIBUNALS (Cesare Romano, ed., 2008):

"Since 1946, the United States has had an uneasy relationship with the International Court of Justice (ICJ or World Court or Court). On the one hand, the United States embraces the rule of law within its own society and, in principle, within the international system of states. The United States has been and remains an active participant in cases before the Court, appearing before it several times, more than any other state, even in recent years. On the other hand, the United States has never been willing to submit itself to the plenary authority of the Court, and has typically reacted negatively to decisions by the Court that are adverse to U.S. interests.”

Breyer discusses several instances in which the ICJ has ruled against the U.S. and the cases have gone to the Supreme Court for a determination of whether foreign courts - “created pursuant to a treaty ratified by the United States” - can issue judgments that are binding within the United States. It’s probably not a surprise that the Court has ruled (particularly in Iguarta-De La Rosa v. United States, 417 F. 3d 145, 150 (1st cir. 2005) the U.S. need not follow ICJ decisions in matters of domestic law unless a provision in a treaty ratified by the Senate is made into a domestic law by the House. However, this caveat applies to only some treaties - it’s all very complicated; the Court must decide if the caveat applies on a case-by-case basis. But obviously, most nations, especially the U.S., don’t want to give up judicial sovereignty.

Nevertheless, Breyer’s point is that increasingly foreign law and foreign considerations will impact law in the U.S. and influence decisions of the Supreme Court. The Court should extend its range of legal and practical reference. One would think this conclusion is so obvious as to be absurd, but in fact, there are several members of the current Court who are opposed to taking anything into consideration besides domestic concerns. One wonders how they can even think about the complicated cases that now come before the Court with this attitude. Most notably, Justice Breyer has often sparred with Justice Scalia on this subject. Moreover, as Breyer reports, in 2004, 74 members of Congress sponsored legislation stating:

"…that judicial determinations regarding the meaning of the laws of the United States should not be based in whole or in part on judgments, laws, or pronouncements of foreign institutions unless such foreign judgments, laws, or pronouncements . . . inform an understanding of the original meaning of the laws of the United States.” (H.R. Res. 568, 108th Cong., 2004)

Where does this resistance come from? Mostly, it stems from political conservatives, who resent, for example, the tendency of most of the rest of the Western world to reject the death penalty, to recognize same-sex relationships, and to have stricter laws about access to guns.

One can only hope that the rule of reason will return to all branches of the U.S. Government, but unfortunately, it is beginning to look more and more unlikely.

Evaluation: Breyer provides an excellent analysis of the facts and issues at stake for each case he discusses, helping readers to understand just how complex the law can be. He presents both sides of the decisions fairly, whether he was in agreement or not, and makes a very good case for the need for increasing knowledge of world law by jurists.

Audio Book Run time: 12 hrs, 38 mins. Available as an unabridged digital download from Penguin Random House Audio (2015)

A Note on the Audio Production:

Breyer reads his book well, but employs a number of pronunciation anomalies.

Disputes, for example, are DIS-putes rather than dis-PUTES. He says de-CADE rather than DEC-ade. These may just be regionalisms. Justice Breyer has trouble saying “integral” but so do I. (Let’s get rid of that word!) But the most jarring is the most surprising: his pronunciation of amicus curiae. This is a Latin phrase meaning “friend of the court” which refers to briefs filed by interested outsiders in a legal case. I have always heard one of two pronunciations of “amicus,” either as uh-MEE-kuss or AM-uh-kuss, the first being more common. I was astounded to hear Breyer say “a-MY-cus,” I thought I must have been wrong all these years, and looked it up. I found a most humorous article by language guru William Safire commenting on this very tendency of Breyer’s. He writes:

"Tony Mauro, who watches the Supreme Court with a legal-eagle eye for Legal Times, noted that Justice Stephen Breyer has his own pronunciation. ‘During arguments Jan. 15 in Lambrix v. Singletary,’ wrote Mauro, ‘Breyer said 'a-MY-cus' so many times that the hapless lawyer before him, solo practitioner Matthew Lawry, adopted the same, clearly incorrect pronunciation just to be accommodating.’ The reporter checked with Prof. William McCarthy of the Greek and Latin department of Catholic University, who agreed that Breyer's pronunciation was, to say the least, nonstandard; the professor preferred ‘AH-me-kous.'"

Safire went on to say that he then consulted Bryan Garner, the editor of the Dictionary of Modern Legal Usage and the seventh edition of Black's Law Dictionary. Garner told him:

"‘Justice Breyer has adopted an Anglo-Latin pronunciation. . . ‘It will make any Latin teacher apoplectic. But it has English and American history behind it, and that, in the end, matters more than how Cicero might have mouthed the phrase.’”

At any rate, at track 46, Breyer switches to ah-ME-kous. By track 49, however, he is back to ah-MY-cus. show less

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 show more 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. show less

In this book, Justice Stephen Breyer attempts to explain how the Supreme Court attained it's legitimacy, how it retains it's legitimacy, and how individual justices arrive at decisions. He uses specific cases as examples and doesn't hide his own views or decisions. The writing style is interesting for what could be a fairly dry subject.

I thought that the methods for deciding a case were interesting. Among other things he discusses using legal precedent, historical customs, and original show more intent. He also discusses that certain courts are expert in certain areas and their decisions should be trusted when possible.

He ends the book by pleading the case for better instruction in civics/government in public schools, stating that our democracy and specifically the court's role in it can only keep it's legitimacy if the public understands the processes it uses and the role it plays. show less