Book Review: “Making Our Democracy Work: A Judge’s View” by Stephen Breyer

Making Our Democracy Work is the work of a left-leaning sitting Supreme Court Justice, Stephen Breyer. Well-titled, the book is a treatise that explains the goals of the Court as set out in the Constitution and its successes and failures over the last couple centuries, as well as the means that its author believes ought to be emphasized today in order to realize a constitutional democracy based on civil rights, not simply on paper but in actual practice.  Justice Breyer suggests an arsenal of tools and focuses that he believes — convincingly — the Court can and should use to maintain a public trust in enforcing “our Constitution’s liberty-protecting limits.”

The book is just as no-nonsense as you might expect and require of a sitting high court judge: it is divided into discrete, functional parts that each build in their own way in spare but effective prose to the ultimate and multifaceted thesis.

The first part explores the historical basis for the remarkable trust and deference that the American people grant the Court, explicitly relying only on well-accepted but detailed historical accounts of a few important cases. Breyer explores in entertaining prose the first great test of the nascent Court in Marbury v. Madison; points out a miscarriage in the treatment of the Cherokees under the Jackson administration when he ignored a Court order protecting their rights; visits what is hailed as one of the worst decisions the Court ever made in Dred Scott; counters with a triumph of cooperation between the judiciary and the executive in Brown v. Board of Education and school integration in Little Rock; and concludes with an analysis of the contentious 2000 decision Bush v. Gore. The exercise was to demonstrate that ours is “a nation that has gradually come to place confidence in the Court.”

The second part is Breyer’s vision for the manner in which the Court ought to function to preserve Constitutional guarantees by maintaining the public trust while not yielding to political pressures. This is clearly easier said than done, and the proffered mechanism of emphasis on the purposes (whether determined or inferred) and the consequences (more often real than imagined) of legislation — as opposed to fealty to wording or precedent or archaic interpretation, which are acknowledged as well to have a place in crafting decisions — seems phrased specifically to convince strict constructionists like Breyer’s colleague Antonin Scalia. But it is easy to forgive the explicit emphasis on these tools given the herculean job Breyer performs in justifying their application both through specific examples and accessible abstractions. Breyer’s approach is multifaceted too, as he also explores justifications in depth for qualified deference to the specialized expertise of executive administrations, state authorities, and lower federal courts. I was struck by the breadth and restraint of Breyer’s judicial vision.

The third and final part is devoted to an exploration of the Court’s duty to protect individual rights. Between detailed and painful discussions of Court failures with WWII Japanese internment cases and recent relative successes with Terrorism cases like Hamdi and Boumediene, Breyer demonstrates how the Court has and (sometimes) uses the power to check executive excesses to guarantee constitutional liberties. Importantly, he underscores the tenuous successes of the Court in maintaining a functioning democracy by quoting Bush 43’s reaction to the Boumediene ruling: “We’ll abide by the court’s decision — that doesn’t mean I have to agree with it.”

Overall, the book is an eminently readable, educational treatise unlikely to be less informative than any text book on the subjects it addresses, and it has an aggressive collection of notes. There are also a pair of appendices: the first is a collection of images relating to the cases discussed throughout the book that Breyer hopes will remind readers that they “were decided by, and the principles have a profound effect on, human beings” in order to drive home the real importance of these issues; the second is among the shortest and most effective descriptions of what it is the Supreme Court actually does that I have ever read, which is indispensable for anyone unfamiliar with or prone to needing to explain to others the function that our government’s third and ‘weakest’ branch (according to Hamilton) performs.
I fault the book for repeating certain phrases and themes a little too often, but that seems more like a failing of sloppy editors, a symptom of the desire to make the book exceedingly consumable to the layman, or perhaps a forgivable idiosyncrasy of the author; and it is my only major criticism. I recommend the book heartily, and close with the final passage from its conclusion, which summarizes its laudable purpose:
The stories this book sets forth are told from the point of view of one judge. I have drawn my own lessons from them. I hope that they lead others to study the stories and ponder their lessons about our constitutional history. Then they too will be better able to help make our democracy work. I hope so.
That is why I have written this book.
 
Published 2010, 270 pages.