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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 that public 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.
- Sales Rank: #564673 in Books
- Published on: 2010-09-14
- Released on: 2010-09-14
- Format: Deckle Edge
- Original language: English
- Number of items: 1
- Dimensions: 9.53" h x 1.18" w x 6.60" l, 1.32 pounds
- Binding: Hardcover
- 288 pages
- Current Events, Democracy, Stephen Breyer
From Publishers Weekly
Starred Review. Justice Breyer (Active Liberty) looks at how the Supreme Court evolved historically and defined its role largely in relation to the willingness of the public to embrace its decisions. Readers may be surprised to learn that in many democracies, parliaments are not bound to accept decisions by their court; similarly, the U.S. Constitution doesn't give the Supreme Court final say. Breyer tells the story of President Jackson's grudging acceptance of a Court decision protecting the treaty rights of the Cherokee nation, only to seize their land using Federal troops. In the Dred Scott decision, the pro-slavery Court violated the right of Free states to outlaw slavery. And in Brown vs. the Kansas Board of Education, President Eisenhower used the Army to back up Court decisions against segregated education. Breyer discusses recent Court decisions in favor of rights for Guantanamo detainees and examines the limitations of a President's power as Commander-in-Chief, even in wartime, contrasting this to the failure of the Court, Congress, and President Roosevelt over internment camps during WWII. An accomplished writer, Justice Breyer's absorbing stories offer insight into how a democracy works, and sometimes fails. (Sept.)
(c) Copyright PWxyz, LLC. All rights reserved.
From Booklist
Justice Breyer was appointed to the Supreme Court in 1994 (and, of course, he serves for life, as mandated by the Constitution). His book partners well with Jeffrey Toobin’s well-received The Nine (2007), which is an account of the politics and personalities of the current Supreme Court. Breyer projects a larger context, supplying both historical and judicial background to give the nonspecialist a generalized picture of how the Supreme Court works. He explains the Court’s role in ensuring a workable democracy, in guaranteeing that the Constitution works in practice and in the real world. Certainly an interesting aspect of this greatly informative book is Breyer’s look back over the history of the republic to see how the public—and even the U.S. president—has accepted Court decisions. (It is not readily imaginable, to be sure, but, nevertheless, it is dramatically illustrated here that such acceptance was a principle that was not easy to plant within social and political consciousnesses.) Breyer is emphatic that “at the end of the day, the public’s confidence is what permits the Court to ensure a Constitution that is more than words on paper.” A book for all citizens. --Brad Hooper
Review
“Deeply thoughtful…Breyer’s goal is for the system to work, to solve problems, to improve our national life…He is building an argument for the ages…A clarion call to future generations…This is a brave book.”
—Jeff Shesol, The New York Times Book Review
“A sparkling and ambitious book . . . Justice Breyer takes a deep breath and delivers an eloquent exposition that seeks to clarify the court’s role in a healthy system of government.”
—Ken Gormley, Pittsburgh Post-Gazette
“Vivid and full of surprising details . . . Breyer’s willingness to present his argument in terms that educated citizens can understand, in the hope of persuading all of us to participate actively in American democracy, exemplifies an idealism about what is possible in a democratic citizenry, and an optimism about it, that is as impressive as it is rare on the Supreme Court . . . Very admirable.
—Jeffrey Rosen, The New Republic
“A calm, reasoned book about how the Supreme Court should do its work and how, in history it has sometimes failed the challenge . . . A remarkable contribution to educating the public about our constitutional system.”
—Anthony Lewis, New York Review of Books
“A great read . . . At a moment in which most of us talk about the Constitution in tones of rage and betrayal, Breyer’s optimism, modesty, and scholarly passion are welcome change. Making Our Democracy Work is an invitation to a much more civilized and nuanced conversation about the relationship between Americans, their government, and their freedom.”
—Dahlia Lithwick, Slate
“An accomplished writer, Justice Breyer’s absorbing stories offer insight into how a democracy works, and sometimes fails.”
—Publishers Weekly (starred review)
“The most honest discussion of what a judge should do that you will ever find, all the more remarkable because it is written by a sitting Supreme Court justice.”
—David Fontana, The Washington Post
“A users’ guide to both the Constitution and the Supreme Court . . . You will find perhaps the best five-page description ever produced of how the Supreme Court works.”
—David M. Shribman, The Boston Globe
“A full account of his judicial philosophy, one that allows the federal government wide latitude in addressing society’s problems.”
—Jeffrey Toobin, The New Yorker
“Making Our Democracy Work extends [Breyer’s] public ruminations with what are becoming his hallmarks: wisdom, modesty, incisiveness . . . Breyer’s thoughtful book draws readers into the court.”
—Jim Newton, Los Angeles Times
Most helpful customer reviews
127 of 134 people found the following review helpful.
Further Views on the Proper Role for the Supreme Court
By Ronald H. Clark
This book is a continuation of the dialogue Justice Breyer began in his previous work "Active Liberty." There, he argued that the Court should implement greater participation of citizens in their government. Although he touched at points upon the originalist/literalist approach to interpretation favored by Justices Scalia and Thomas, in his typical polite and reasonable fashion he preferred to explain his approach rather than lob grenades at their dedication to text and originalism. This book too is polite and reasonable, but aims to look at a wider and more fundamental issue--how can the Court contribute to making a "workable democracy" by applying enduring constitutional values to ever-changing circumstances. The short answer in this pragmatic-oriented book, is for the Court to build productive relationships with other governing institutions, as it protects individual rights and searches for the values underlying the Constitution. In short, Breyer is again arguing for what might be termed a greater degree of "judicial modesty" which facilitates better governance.
Breyer first discusses the concept of judicial review, where it came from in Marbury v. Madison, and how history demonstrates (in the Cherokee removal, Dred Scott, and the Little Rock desegregation cases) how dependent the Court is upon ephemeral public support. Breyer is unique in his ability to explain historical and legal concepts in terms that the general reader can assimilate--a rare talent indeed. Basically, Bryer concludes, as long as the Court's opinions are "principled, reasoned, transparent and informative" it will hold public support. Once again, I was disappointed that his discussion of the Bush v. Gore case is highly polite and reasonable and does not, I am sure, reflect the intra-Court dynamics involved in that sad episode.
One of the most masterful sections of the book is where the Justice discusses why he thinks originalism, reliance upon text, and founders' history are not determinative in interpreting the Constitution or statutes. As usual, he is polite and positive, but he makes his point well. Rather, reliance upon purpose and consequences constitute a superior approach.
So, how should the Court proceed to build cooperative relationships? Breyer devotes individual chapters to answering this question as relates to Congress and statutes ("reasonable" interpretation), the executive branch and administrative agencies (recognize its greater expertise than courts), and the states and federalism (like Justice Brandeis, recognize the benefits of state and local experimentation and defer strongly). Two the best chapters in the book, for both the general reader and those better versed in the issues, address how the Court should deal with lower federal courts, and why precedent is important and when it should be followed (the current Court majority might find this discussion particularly illuminating).
The final section of the book deals with concepts such as permanent values, proportionality, "core elements," and "workable reality." These are somewhat intangible concepts, and Breyer's discussion may encourage some to embrace originalism, history and text as somewhat more substantial interpretative guidelines. He uses the Court's recent decisions in the Second Amendment and Guantanamo prison cases, as well as the 1940's Japanese relocation cases, to explore these concepts. It is quite interesting to peek into the mind of a sitting Justice (as it was with "Active Liberty") to see how he perceives the Court's role. This dimension is as helpful to the experienced student of the Court as it is to the average citizen.
The book runs some 254 pages including notes, and contains some illustrations and an appendix designed to quickly educate the general reader about the Court and how it works. Although sometimes Breyer seems to be "up in the clouds" as he tackles ephemeral concepts, there is no question that this is one of the rare books that really opens up the reader's mind to new concepts and considerations.
39 of 41 people found the following review helpful.
Enjoyable and insightful
By G. Scholl
I liked this book for many reasons, but two stand out. First, it is an interesting contextualization of the path our country has taken starting out from the basic "idea" of the role of the Supreme Court in the American political system as envisioned by the Founders, to the current manifestation of that role, replete with twists and turns along the way. Second, and very much in the intellectual spirit of his previous book (which I also really liked), it is a reminder that our government is only as good as we, its citizens, are: active, educated and engaged participants allow the engine to function as it should, with the Court serving in its role as, in Justice Breyer's words, the border patrol that makes sure nothing enacted by Congress violates the basic precepts forth by the framers. I enjoyed Justice Breyer's prose style and also found the individual cases he discusses, and his take on them, incredibly interesting in their own right. I would highly recommend this book to anyone, left right and center, who has a pulse and cares about our country ... how a series of ideas set forth a couple hundred years ago are being manifest in contemporary American society. An important book that I suspect history will look on kindly.
0 of 0 people found the following review helpful.
Five Stars
By Amazon Customer
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