Thursday, September 09, 2010

Justice Breyer’s New Book

Stephen Griffin

I want to mark my return to blogging at Balkinization by strongly recommending Justice Breyer's new book, Making Our Democracy Work: A Judge's View, to everyone interested in constitutional law and theory. And beyond as well, given that the book addresses matters of statutory interpretation and administrative law. It is available September 14. I had the opportunity to learn about the book this summer because Justice Breyer taught a course in Tulane's program at Trinity College, Cambridge. I was the official note taker for the course.

This is an unusual book for a Supreme Court justice. It is not a memoir or a short book based on lectures. I take this to be Breyer's summa in 15 chapters. As you might expect, there are no insider anecdotes concerning life at the Court. But he doesn't hesitate to discuss recent issues the Court has faced, some where Breyer has dissented (such as gun rights) and others where he has voted with the majority (detainee treatment). This is a book such as a former law professor might write. I believe it is always worth bearing in mind a person's formative experiences and Justice Breyer was an academic for many years at Harvard.

An overarching theme of the book is "the Supreme Court's role in maintaining a workable constitutional system of government." This is reminiscent of a comment Justice Jackson made in the Youngstown case. Breyer stresses the need for the Court to build "productive working relationships" with the other branches of government. In his view, these relationships are necessary for judicial review to function properly and, indeed, to exist in the first place. Breyer tends to think trust among government institutions and between those institutions and the people is essential to making government work. He makes a historical argument in the first part of the book concerning the establishment of judicial review. He sees this as a gradual process and frames the inquiry around the question of why the public trusts the Court enough to respect its decisions, even when a majority of the public is convinced they are wrong. To show the halting development of judicial review he discusses Marbury, the Cherokee cases, Dred Scott, the Little Rock crisis, and Bush v. Gore.

While Breyer's historical discussions are always interesting and to the point, I admit at first I did not find his bottom line to be very innovative. Breyer in effect endorses the "limited capital" theory of the Court's power that was in vogue in the 1950s and 1960s. To maintain public confidence in the Court, the power of judicial review must be exercised in a certain way, to honor "the lessons of the past." Given his extensive attention to Dred Scott, what Breyer seems to mean is that the Court can put the power of judicial review in danger if it goes too far. Yet, as he notes, the example of Bush v. Gore shows the Court's capital has grown so great that it can decide a presidential election and its decision was still respected by those who lost. Perhaps the innovative element here is that a number of justices on the Court might share Breyer's sense of caution about how the Court exercises its power. If so, that would be support for what Mark Tushnet has called the "chastening" of constitutional law.

In the second part of the book, Breyer moves to the present and addresses the structure in which constitutional and statutory interpretation should take place. As one might expect, the general framework is consistent with his previous book, Active Liberty. He rejects Justice Scalia's originalism and endorses a pragmatic theory of interpretation that dovetails with his emphasis on promoting workable government. What is especially important about this part of the book is Breyer's chapter defending a purposive approach to statutory interpretation. I try to avoid excessive praise, but this chapter is a gem, a model of argument based on both meaningful theoretical reflection and practical experience. I doubt whether any scholar could do as well.

I will devote two subsequent posts to Justice Breyer's book, one to his discussion of United States v. Lopez, a commerce clause case where he dissented but I think time has proven him correct, the other to his discussion of Korematsu and the problem of deference to executive authority in wartime, a discussion I find problematic.


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