Making Our Democracy Work (2010) (edit title/settings)

• Rated 0 stars

“Justice Breyer reviews the history of our democracy and integral role of the courts and explains, in his view, why people even bother to follow the Court's decisions.”

• Rated 4 stars

“Aimed at the non-specialist, Associate Justice Stephen Breyer's book does a good job at using some of the more important cases in the history of the Court to sketch his personal approach to the Constitution. He then discusses these cases in relation to how he formed his moderate, consequentialist, and pragmatic approach to interpreting the Constitution and various statutes.

Part I considers how the Constitution can ensure a workable democracy while at the same time maintaining its legitimizing power. More to the point, "why should a democracy, a political system based on representation and accountability, entrust the final or near-final making of such highly significant decisions to judges who are unelected, independent, and insulated from direct impact of public opinion?" (p. 4). Some of the cases Breyer looks in this section are Marbury v. Madison, the Cherokee Indian cases of the 1830s, Brown v. Board of Education, Dred Scott, and Bush v. Gore, and uses these cases to show the growth of popular acceptance of court decisions, beginning with Jefferson's refusal acknowledge Marbury's commission to the seeming blanket acceptance of the fact that the Supreme Court chose the President in 2000. The chronological discussion smartly considers the changing contours of public opinion and describes how the Court, an institution that began with almost no sense of judicial legitimacy, constructed it slowly over time. That Breyer considers the case of legitimacy first is telling, and it is obvious that Breyer knows that the Court is powerless without this assumed legitimacy.

Part II discusses some of the ways in which Justice Breyer believes the Court must maintain the public trust it has earned. Here, he spells out the differences he perceives between a "text-based" approach (which he argues against) and a "purposes-and-consequences" approach (which he advocates). The former seems roughly equivalent to an unchanging, ahistorical originalism on the order of what Justice Scalia argues for, while the latter resembles a living Constitution. Here, he discusses the role of federalism, the roles and specialties of other courts, and stare decisis.

Part III discusses individual liberties, especially the cases coming out of World War II (Korematsu and Hirabayashi) and executive power and accountability (Rasul, Hamdi, Hamdan, and Boumediene).

For someone who might be familiar with the history of the jurisprudence discussed above, as any law school graduate would be, the historical parts of the book will already be extremely familiar. While not an attorney myself, I had the pleasure of discussing this book with my partner who is one, which made reading it all the more enlightening, and the source of a lot of exciting discussion. I have always admired Breyer's moderate, pragmatic decision-making and read this book mostly to see how he constructed this approach. It's a really good synthesis of the history and opinion that gives a lot of insight into Breyer's opinions, and will shed some light on Breyer's hermeneutic decisions even for those familiar with the case law.”

• Rated 4 stars

“I had to turn in before I finished. Check out in 2011”

• Rated 5 stars

“A thrill to have hadJustice Breyer at school twice and a favorite with the students. He reminds us always of his brilliance by making his work so accessible. His belief in our democracy shines through.”

• Rated 0 stars

“Justice Breyer argues for a nuanced approach to decision-making, which in interpreting the Constitution and interpreting federal statutes looks not at one but a number of different factors, namely "history, traditions, precedent, purposes and related consequences." He emphasizes the need to be practical, and the importance of having the Supreme Court "complement" the other two branches of government, each having its own role. He points out that the Supreme Court's power of "judicial review," whereby it can overrule the actions of the Legislative and Executive branches is not something to be taken for granted (and indeed wasn't always so) and that it can only be maintained via the Court's actions in strengthening democracy and earn the respect of the citizenship. He therefore attaches great importance to the reasoning that supports the Court's opinion, since good and sound reasoning is what distinguishes an objective from the purely subjective.

Seen in context, this book is clealry an attempt to counter-react other tendencies in the court, such as those of "traditionalists" whose interpretations of the Constitution would return us to the 18th century, or "activists" who are intent to carry out their own particular agenda. ”