Making Our Democracy Work: A Judge’s View
Stephen Breyer
Democracy feels fragile these days. I shouldn’t feel this as deeply as I do since it’s always been true. From Benjamin Franklin to Ronald Reagan, our most serious leaders warn that freedom is never more than one generation away from extinction, that we have a republic if we can keep it. Frankly, liberty has always felt normal to me, if not inevitable; and this despite the fact that everything I know suggests that self-government is a thin membrane stretched taut across a relentless, primeval lust to dominate.
Twelve years before his retirement, Supreme Court Justice Stephen Breyer published “Making Our Democracy Work,” a precise and cogent argument for his view of how the Supreme Court serves to keep that lust from breaking its constitutional constraints. Though I consider myself politically conservative, and though Breyer aligned with the liberal wing of the Court, I always looked forward to his thoughtful and lively lines of questioning. I liked the guy in spite of myself. This grudging admiration is a good analogue for the key that unlocks Breyer’s judicial philosophy: that sharing a nation requires trust and good faith even between people who otherwise see the world differently.
Breyer argues for a pragmatic judicial philosophy that weights values and consequences more heavily than a text’s original meaning. Through chapter-length studies of four Supreme Court decisions, he discloses the Court’s dirty little secret: that much of the deference we give it is a gentleman’s agreement since the Constitution never grants the Court the power of judicial review. The Court itself reasoned its way there in Marbury v. Madison, and on that basis gradually assumed its role as arbiter of what the Constitution means. This role has proved a stabilizing feature of American life. Because we all agree to accept both the Court’s reasoning about its powers and its decisions as final, we choke down even unpopular verdicts rather than turning to renegade legislation, a reckless executive, or mob violence.
That’s all very unsettling in an age of mutual disagreement and acrimony. I can easily imagine a Supreme Court that can’t read the room, churns out decisions that appear to slice and dice the Constitution along partisan lines, and fumbles public trust so badly that people start weighing the benefits of this bargain we’ve struck. What happens if the Supreme Court suffers such a severe crisis of legitimacy that the meaning of the Constitution itself becomes a loose football? This is the unnerving specter that informs both Breyer’s judicial philosophy and the final two parts of the book.
For Breyer, the Supreme Court can best steward its legitimacy and help make democracy work through a pragmatic approach to law. Rather than opening a dictionary or lashing ourselves to 18th-century modes of thought, a Supreme Court justice should ask himself two questions: what societal value were the Framers trying to privilege by means of a given statute, and will the consequence of my decision support that value or make it harder to achieve? Further, how can the Court best discharge its duty as one of three coordinate branches, defer to the proper powers of Congress and the Executive, constrain their excesses, and protect individual liberties against undue intrusion? Balancing these priorities against each other helps the judge arrive at opinions that are faithful to the intent of the Framers and acceptable to society at large.
By contrast, a narrowly textual and originalist approach is at once too vague and too precise. On the one hand, it’s often difficult or impossible to recover the mental constructs of a statute’s authors at the time they wrote it. This may encourage a judge to project his own beliefs into the past and call it history. On the other hand, the inferences we do draw may have undesirable ends. An example Breyer uses twice is that of flogging in the Navy. This was considered neither cruel nor unusual when we enacted the Eighth Amendment, so should we allow whipping on naval vessels since this was allowed by the original understanding of the text? Textualism and originalism may promise superior controls on interpretation, but aren’t flexible enough to account for the way societies change. By placing greater weight on values, a judge can render decisions that are both faithful to the intent of the law and acceptable to society as it exists today. This bolsters the Court’s legitimacy, stabilizes society, banks goodwill for occasions when the Court must make an unpopular finding, and makes democracy work well.
It’s easy to turn these objections around. When Breyer considers the value behind a law, and rules in favor of that value rather than getting tangled in the words, what prevents him from projecting his own preferred outcome just as much as an originalist? His answer is the song I’ve been singing this whole time: good faith and mutual respect is more important than we realize. The saving grace of pragmatic judicial decisions, says Breyer, is that they must be reasoned and published for all to see. If a judge is pulling verdicts out of his partisan pocket, then he’ll be exposed as partisan for all the world to see.
Breyer never explains why this is a decisive check on a pragmatic judge but not on an originalist, but perhaps that’s not the most important feature of his thought. He obviously assumes that a judge who reasons in good faith will want to be known as a good-faith judge who reasons well, and that the prospect of public shame is a sufficient check on complete subjectivism. Breyer thus presumes the existence of a fraternal society where folks on different teams are also, by and large, on the side of truth, justice, and the American way.
I don’t think he’s wrong to make this presumption, because don’t most of us want this? After all, one of the most famous Supreme Court friendships was that between the originalist Antonin Scalia and the more pragmatic Ruth Bader Ginsburg. Neither approach is wicked and each has much to commend it. Breyer argues well for his approach as one that makes democracy work. Whether I agree with him or not, I can hope with him that we continue to live in a world where good faith, mutual trust, and having a judicial philosophy matter.
Author: Stephen Breyer
Genres: Nonfiction, Philosophy, Political Philosophy