Making Our Democracy Work
California Lawyer

Making Our Democracy Work

May 2011

Making Our Democracy Work: A Judge’s View
by Stephen Breyer
Alfred A. Knopf, 270 pages, $26.95, hardcover




Joseph Stalin once asked derisively: How many divisions does the pope have? In Stalin's worldview, the course of human affairs is inevitably driven by brute force. One major challenge of modern democracy is to prove him wrong.

U.S. Supreme Court Justice Stephen Breyer addresses this challenge in Making Our Democracy Work, where he ponders "the public's willingness to accept the Court's decisions as legitimate." What can be done, he asks pointedly, to prevent the other branches of government and the American people from ignoring a constitutional decision they believe is wrong? Like the pope, the Court has no army to enforce its decisions. "The key," he answers, "lies in the Court's ability to apply the Constitution's enduring values to changing circumstances," which is essential to ensuring a "workable democracy."

Breyer explains--in the book's three parts--his constitutional jurisprudence, offering a manifesto for a workable democracy. Part I examines a handful of landmark decisions in the Court's history-Marbury v. Madison, the cases preceding the forced relocation of the Cherokee Indians from Georgia to Oklahoma in 1838, Dred Scott, Brown v. Board of Education, and Bush v. Gore--that have tested Americans' confidence in the Court and their willingness to abide by its decisions. In part II Breyer espouses what he calls "a set of pragmatic approaches" for preserving the public's willingness to accept the Court's decisions, even the unpopular ones. And in part III he applies this pragmatism to issues involving individual liberty in the context of presidential power, national security, and the Guantanamo Bay detentions.

Breyer's judicial pragmatism is his answer to Justice Antonin Scalia's jurisprudence of "originalism," which Breyer describes as treating the Constitution's "scope and application as fixed at the moment of framing." In contrast to Scalia, Breyer regards the Constitution as "containing unwavering values that must be applied flexibly to ever-changing circumstances." He argues: "The Court must consider not just how eighteenth-century Americans used a particular phrase but also how the values underlying that phrase apply today to circumstances perhaps then inconceivable." This approach can make the Constitution "work well for Americans" today and ensure that they continue to accept the Court's decisions as legitimate.

A crucial element of Breyer's philosophy of pragmatism is a "proportionality" inquiry, which asks whether challenged legislation interferes "disproportionately" with the values underlying the Constitution. For example, in deciding the constitutionality of a local handgun restriction, the Court would ask: "Does the handgun restriction disproportionately interfere with the values that underlie the Second Amendment?" Breyer admits that "proportionality is complex and difficult to apply in practice," and some conservatives might tar such jurisprudence as a squishy sort of "relativism." Indeed, Breyer's nuanced explanations of the examples of his pragmatic approach are more challenging than Scalia's easily understood originalism. But Breyer makes the case for nuance over the simplicity of originalism as the key to maintaining the Court's legitimacy and thus ensuring a workable democracy.

One wishes, however, that Breyer would make his case more stirringly. Though his prose is precise and clear, it is also dry. The book is no page-turner, except perhaps for the most devoted of constitutional scholars seeking an explication of Breyer's judicial philosophy and its espoused advantages over Scalia's originalism. In making his argument, Breyer points to the inflammatory language in the Dred Scott decision to warn of "the dangers of reliance on rhetoric" in judicial opinions, but this book could have used a bit more rhetoric to compete more effectively with Scalia's hard-driving writing style.

But despite that limitation, Breyer concludes his book with this cogent warning: "The public's acceptance is never a sure thing. It cannot be taken for granted." Indeed it cannot, if Stalin and his like are to be proven wrong.

Jon B. Eisenberg is an appellate lawyer in Oakland and principal author of California Practice Guide: Civil Appeals and Writs (The Rutter Group, 2010).

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