Giving Back Your Constitution

What the court needs, Breyer’s new book says, is an engaged public.

For years, Justice Stephen Breyer has been struggling with an existential question: Why does the American public accept and respect the authority of the Supreme Court—an institution that seized for itself the power of judicial review in Marbury v. Madison and later, as he notes, snatched up the mantle of judicial supremacy as well? Why would the American people put up with that from the branch of government that has no power to enforce its decisions at all? Why don’t Americans just declare that the court is irrelevant and move on?

Breyer likes to illustrate his point with a story about the Supreme Court’s 1831 decision that would have barred white citizens of Georgia from booting Cherokee Indians off their own land. When he learned of the court ruling, President Andrew Jackson refused to enforce the court’s decision (reportedly saying of the chief justice, “Well, John Marshall has made his decision, now let him enforce it”). This is the stuff of Breyer’s worst nightmares: a Supreme Court decision rejected by the public, nullified in the states, and then ignored by the executive branch. Things have changed a lot since 1831, and Justice Breyer wants to probe how it is that a court with neither a purse nor a sword (quoting Alexander Hamilton) is no longer the 98-pound constitutional weakling, why the public is today willing to abide by its decisions—from Bush v. Gore to the recent Guantanamo cases—even when we believe the court got it wrong.

It’s a complicated question, made more complicated by the fact that Breyer’s premise may be more aspiration than fact. There have been rumblings for years about the legitimacy of certain Supreme Court rulings—from talk of impeaching justices when they cite foreign law in their opinions to proposals to impose term limits on them. That means that Breyer’s new book, Making Our Democracy Work, A Judge’s View, is both an explanation of public deference to the court and a plea for it. He wants us to realize that the court is only as remote and elitist as we allow it to be. And to prove this point, he seeks to reveal in exacting detail how judges decide cases. He wants to prove that what judges do is both complex and comprehensible, and also that they would do it much better if we involve ourselves in their constitutional project.

Breyer is partly responding here to Justice Antonin Scalia, the nation’s top-ranked salesman for originalism for the past 20 consecutive years. Textualists, originalists, and strict constructionists adhere to variations on the idea that the meaning of the Constitution is fixed by, and limited to, the words and intentions of the framers in 1789. Breyer never addresses Scalia directly in his book, but this is very clearly his effort to jump into a constitutional debate that has really had only one side in recent decades. Thus Breyer contends that the two biggest threats to broad and enduring public acceptance of the courts are interpretative approaches that confine constitutional interpretation to the “dead hands” of the framers, and a lack of court accountability to other government institutions. In other words, he argues, justices need to stop pretending to be infallible oracles, and they also need to start playing better with other institutions of democracy. And the truly radical part of it is that he and Scalia may actually agree that it’s civic engagement that will guard America against judicial tyranny.

In a display of genuine judicial humility, Breyer argues that the justices are neither professional mind readers nor trained historians. The best they can aspire to, he contends, is to keep faith with the framers original “values.” Public legitimacy for the court, argues Breyer, is not enhanced by being the best darn channel for the Founding Fathers (who in any event disagreed among themselves and deliberately used broad, ambiguous language) but by creating a Constitution that “works,” with “pragmatic” solutions and careful compromise. You don’t just stop at the text and history, Breyer argues; you also consider “purposes and consequences.” He argues—again in response to an imaginary Scalia—that purpose-oriented judges are no more likely to impose their own subjective policy views in determining a statute’s purpose than a text-oriented judge is. And here you can imagine Scalia miming repeated stabbing motions to his own head in response. Even Jeff Toobin, in The New Yorker (subscription only), chuckled some at Breyer’s fascination with words like “pragmatism” and “workability,” words better utilized in building a better snow plough than inspiring a nation to a deeper constitutional adherence.)

But Breyer might say there is in fact nothing more inspiring than an invitation to roll up one’s sleeves and cooperate in the crafting of a Constitution that actually works—a democracy-enhancing Constitution that defers to the people whenever possible. It’s not Breyer’s Constitution that’s living and changing, it’s the American public. And Breyer happens to be reminding us of this fact at a moment when groups like the Tea Party are claiming that they want to do just that. One wonders whether their respective views about reclaiming the Constitution are as radically different as each might believe.

Breyer views the role of the court as the great enhancer of the democratic process. He carefully explains (and his jurisprudence reflects this) that he prefers to adhere to court precedent, defer to other branches where possible, and he clearly has more than a passing crush on the greatness of the administrative state. But in Breyer’s view, it is only by throwing the government, the president, the lower courts, and government agencies into the pool that we all become truly free. It is for that reason that Breyer is interested in the Constitution less as an immutable rulebook than as an ongoing marriage contract between every branch of government and the American people. Jeff Rosen describes this as “constitutional interpretation for adults,” and he’s right. Pragmatism and workability may not be the stuff of constitutional yearnings and election-year advertising. But in Breyer’s opinion, the Constitution is less a religious instrument than an operating manual. And it’s to Breyer’s great credit that he’s produced an operating manual that is both interesting and compelling.

Justice Scalia likes to answer questions about his own interpretive method by exclaiming that it’s “easy” whereas Breyer never downplays how complicated his views must sound. What’s interesting, then, is that both men are in some ways striving toward the same goal. Recently, Justice Scalia made the observation that the equal protection clause of the 14th Amendment should not have been used to protect the rights of women, since the language was intended only to promote the equal rights of freed slaves. Don’t look to the Constitution or the courts to protect every little right and freedom, says Scalia; look to yourselves. If you want to protect the right to choose, or equal pay, or anything else, amend the Constitution. In his recent remarks at the University of California Hastings College of the Law about the application of the 14th Amendment to women and other minorities, Scalia said that “[i]f the current society wants to outlaw discrimination by sex, you have legislatures.” That’s not all that different from Breyer’s argument that the public shouldn’t expect the judicial branch to work in a vacuum. Like Scalia, Breyer believes that the people need to be deeply involved in the protection of minorities and the development of the Constitution, through their legislatures, their votes, and their strongly voiced opinions. (Breyer is quick to point out that the justices read newspapers.) This isn’t an anti-democratic view of the high court or the law. Both Breyer and Scalia depend on an engaged, informed public.

This isn’t to suggest that the two justices don’t differ profoundly on questions of constitutional interpretation, values, and minority rights. It’s simply that the framing of Breyer vs. Scalia as an ongoing fight about a living Constitution vs. a dead one obscures some of what is really most interesting about two of the court’s most interesting thinkers.

Making Our Democracy work is a great read to boot. The sections on seminal court cases and the interplay among the courts, various presidents, the states, and the public in each case are briskly told and full of colorful details. (The appendix on how the Supreme Court works is worth the price of the hardcover.) Breyer may not ultimately win any new converts to his ideas about pragmatism and compromise, patience and listening and respect. But 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 a welcome change. Making Our Democracy Work is an invitation into a much more civilized and nuanced conversation about the relationship between Americans, their government, and their freedom.

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