Making Our Democracy Work A Judge’s View, Stephen Breyer, Alfred A. Knopf, New York, 2010.
This is a thoughtful, well-reasoned, well-written, insightful, and highly educational book, what one would expect from a seasoned Supreme Court Justice.
As the title suggests, this is primarily a book about American democracy and how it works, or at least how it ought to work. Breyer’s more immediate focus is on the role of the Supreme Court in making things work. He points out that of the three branches of government the Judicial Branch is the weakest, because it has no police force or military force to enforce its decisions. Thus the continued acceptance of the judgments of the Court have to rely on an understanding of how it works, how it is integrated into the larger democratic process, and how it can maintain authority even in cases of unpopular decisions. The Court in previous times, especially in the early years of our nation, did not always possess the authority it has now. Breyer discusses how this increased authority has been achieved. He begins by using four of the most famous decisions: Marbury v. Madison, which first established the Court’s authority, the Cherokee Nation v. Georgia that, although a terrible decision, did established the principle that like cases need to be treated alike, and that the Court did have the power to strike down state laws that are inconsistent with the Constitution, the Dred Scott decision, arguably the worst decision ever made, and finally the Brown v. Board of Education case that did away with the argument for separate but equal facilities and led President Eisenhower to call out troops to enforce this truly unpopular decision. In these four interesting and important cases Breyer reviews the arguments and the logic involved, why they resulted as they did, and the consequences for the nation that ensued.
Breyer makes clear the Court does not operate in a vacuum, but must cooperate with and at times defer to lower courts, Congress, the Executive, and at times even to other Governmental agencies, especially in cases where those entities have more information and expertise in the matter at hand. He goes on to contrast three possible approaches to reach decisions, originalism, political, and pragmatic approaches, and the limitations and benefits of these different approaches (he clearly believes a pragmatic approach is the only sensible way to interpret the Constitution). There is an enlightening discussion of the role of Congress in enacting statutes and the Court’s role in interpreting them, followed by a lengthy discussion of the role of the Executive Branch and the agencies that represent it . Of course there are also some illuminating comments on Federal v. States Rights and the concept of subsidiarity (this insists that governmental power to deal with a particular kind of problem should rest in the hands of the smallest unit of government capable of dealing with it). Breyer discusses at some length the necessity for establishing precedent and the powerful reasons for following precedent, the doctrine of stare decisis, and why it is so rare, difficult and undesirable to change precedents.
There is also an extended discussion of the role of the Court in protecting individual liberties and how in virtually all such cases the Court has to act in concert with some other governmental institution. Breyer cites cases involving such things as free speech, unreasonable search and seizure, the right to bear arms, and others as well. He points out that values are often involved in such decisions, that is, questions of purposes and consequences that are involved in gerrymandering, race, gun rights and so on. Proportionality is also a subject that gets some attention, that is, what happens when a statute restricts one constitutionally protected interest in order to further some other important interest. His discussion of proportionality uses the Second Amendment as an example. Questions of Presidential Authority, National Security and Accountability are discussed in some detail, mostly using examples from the Lincoln, Roosevelt, and Truman administrations. These cases represent the more general question of the extent of Presidential power, especially in the case of Guantanamo.
This is a truly fine and informative book that probably should be read by everyone, especially in light of the conclusions. Breyer makes clear what has always been the basic necessity for democratic success, an educated public:
“Our democratic Constitution assumes a public that participates in the government that it creates. It also assumes a public that understands how government works. Without this public understanding, the judiciary cannot independently enforce our Constition’s liberty-protecting limits.”
“…The Constitution’s efforts to create democratic political institutions means little unless the public participates in American political life. Similarly, the Constitution’s efforts to assure a workable constitutional democracy mean little if the public freely ignores interpretations of the Constitution that it dislikes.”
It has taken a long time for the public to place complete trust and confidence in decision of the Supreme Court. This confidence has been shaken in recent years, particularly when the Court unconstitutionally installed Bush as President in the year 2000, and again, more recently, when they awarded personhood to corporations. Even so, these unpopular decisions were generally accepted by the public, although the latter one will be taken up by Congress and perhaps overridden, the proper recourse for such a case.
I must say, however, the future for our democracy does not look healthy. If support for our democratic system depends upon an educated and knowledgeable public it is not encouraging to note, as Breyer points out, that only in twenty-nine states are courses in civics or government required. There are fewer and fewer town meetings. Those who actually vote are not always even half of the electorate. Only one- third of Americans can name the three branches of government, whereas two-thirds can name a television judge on American Idol. Three-quarters of our population does not understand the difference between a judge and a legislator, and few can describe the historical purpose of the Declaration of Independence. Whereas an informed populace is an absolute requirement for an ongoing functional democracy, that is not at all desirable for those in power who are intent on preserving their positions of power and who thus prefer ignorance to knowledge. Our educational system and the value that should be placed on it have been allowed to seriously deteriorate for a long time. This is not cause for optimism.