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Making Our Democracy Work: A Judge's Viewby Stephen Breyer
Synopses & Reviews
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 thatpublic 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.
Supreme Court Justice Stephen Breyer gives us, for the first time, his original and accessible theory of the United States Supreme Court’s responsibility and integrity.
Every time the court exercises its power of review to overturn legislation, it overrides the actions of popularly elected leaders. In each case, Justice Breyer argues, the court must act responsibly to safeguard the trust of the American people and ensure the cooperation of the other branches of government. He illuminates this argument with the fascinating stories of key decisions, told from his unique perspective. Among others, Justice Breyer discusses Andrew Jackson’s reaction to the Cherokee cases; FDR’s reaction to cases that invalidated New Deal legislation; Eisenhower’s response to Cooper v. Aaron (which, in the wake of Brown v. Board of Education, held that the states were bound by the Court’s decisions); and the public response to Bush v. Gore.
Through the Eyes of a Judge is an opportunity for Justice Breyer—one of the few Democrats on the bench—to refute the strict constructionism advocated by the court’s conservatives. Here he powerfully demonstrates that the influence of our Supreme Court is not historically constant—rather, it has evolved over time, as it continues to do today.
About the Author
Stephen Breyer is an associate justice of the United States Supreme Court. He is a resident of Cambridge, Massachusetts, and Washington, D.C.
Table of Contents
Judicial review: the democratic anomaly — Establishing judicial review — The Cherokees — Dred Scott — Little Rock — A present-day example — The basic approach — Congress, statutes, and purposes — The executive branch, administrative action, and comparative expertise — The states and federalism: decentralization and subsidiarity — Other federal courts: specialization — Past court decisions: stability — Individual liberty: permanent values and proportionality — The President, national security, and accountability: Korematsu — Presidential power: Guant
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History and Social Science » Law » Constitutional Law