The United States Supreme Court likes its mystery: Cases are argued in public, briefs are available for all to read, but its real work is carried out in conferences attended by the nine justices alone. So private are those deliberations that in the rare instances when they are interrupted, it is by a knock on the door; the junior justice, by tradition, answers, is passed a note, closes the door, and then delivers the news to the brethren.
It's thus a bit surprising — and refreshing — to have a sitting member of the court produce a book examining its work. And yet, Justice Stephen Breyer has written not one but two illuminating treatises that thoughtfully place the court in the larger context of American democracy. His latest, "Making Our Democracy Work: A Judge's View," extends his public ruminations with what are becoming his hallmarks: wisdom, modesty, incisiveness and a touch of naiveté.
Breyer divides his book into three parts: Part 1 reviews the tentative development of judicial review, beginning with
's genius; the court's futility in protecting the Cherokees; the struggle over Brown vs. Board of Education and Southern resistance to the decision, culminating in President
Eisenhower's dispatch of the 101st Airborne to
, Ark., to maintain order. Breyer is an engaging storyteller, presenting those episodes with a light pen, illuminating the constitutional issues deftly.
Having laid his groundwork, Breyer then turns to the meat of his argument. Part 2 looks at the craft of judging, and Part 3 revels in the court's greatest duty, the protection of individual liberty.
Practical and gentle, Breyer stands in stark contrast to his more voluble counterpart, Justice
, who is never named in "Making Our Democracy Work" and yet whose presence and philosophy run through this book. Breyer's most pointed passages turn on his cutting dissection of originalism, the faux-philosophy that Scalia affects to justify his decisions
As Breyer writes: "Originalists hope that judges will find answers to difficult constitutional questions by proceeding objectively, almost mechanically, to examine past historical fact." Easily said, not so easily done.
To begin, there's the problem of context. When the framers banned "cruel and unusual punishment," they had no intention of banning flogging, which was practiced in their day. Should the court today uphold flogging, or should it prohibit it as cruel, unusual or both? When the authors of the 14th Amendment wrote that all Americans were entitled to the "equal protection" of America's laws, the same members of Congress oversaw segregated schools in the District of Columbia. Was the court thus wrong to rule in 1954 in Brown vs. Board that segregated schools violated equal protection? Originalism supplies unsettling answers to those questions.
Then there are the problems of modernity. The 4th Amendment, for instance, recognizes the right of people to be protected from government intrusion in their "persons, houses, papers and effects." How about their e-mails? Or their cellphone calls?
Originalism is usually offered in dissent.
It did, however, manifest itself in a recent decision over the meaning of the 2nd Amendment. The amendment in its entirety reads: "A well-regulated militia, being essential to the security of a Free State, the right of the people to keep and bear Arms, shall not be infringed." Does that suggest an unfettered, individual right? Should the mentally ill be able to buy arms? Convicts? And did the Framers envision developments in firepower? Is it only the right to own a musket that's protected? How about a bazooka? A machine gun? A nuclear weapon?
Breyer presents his material deftly, puncturing Scalia's philosophy without ever engaging Scalia directly. He resolves it most eloquently by relying on the words of the late Justice Robert Jackson, an ardent advocate of judicial restraint and the best writer to sit on the Supreme Court. "Just what our forefathers did envision or would have envisioned had they foreseen modern conditions," Jackson wrote and Breyer recalls, "must be divined from materials almost as enigmatic as the dreams Joseph was called upon to interpret for Pharaoh."
If Breyer's analysis is penetrating, however, his remedy is less satisfying. He argues that judges should expand their review of cases to include not just text, precedent, historical context and traditions, but also "purposes and consequences." That's useful — undeniable in one sense — but Breyer's effort is to fashion a more harmonious government, one in which the court works in partnership with the president and Congress in part by engaging in a good-faith analysis of what those officials' "purpose" was in enacting a law or executing an order.
It flows from Breyer's principled sense of duty that he's interested in such a partnership, but the court does not always function well when it looks to help out. To take just one example that Breyer discusses,
's "purpose" in ordering the internment of 110,000 Japanese and Japanese Americans during
was, misguidedly, to protect the nation from their illusory threat. The court's shame was that it gave too much deference to that purpose. .
That's a small criticism and in a way a compliment, as even Breyer's blind spots illuminate his character and animate "Making Our Democracy Work." Breyer genuinely is a gentleman. He imagines himself in an important but civilized exchange of ideas. "However closely divided a controversial decision may be," he writes, "the justices maintain good relations with one another."
That's frankly hard to believe, and certainly not true historically. Justice
referred to Justices William Douglas and Hugo Black as "the Axis." Black and Jackson loathed each other. When Chief Justice Fred Vinson died, Frankfurter remarked that he finally had proof of the existence of God. If the court is enjoying an era of good feeling, it's a recent one. I suspect that it says more about Breyer than the court that he imagines such goodwill.
Finally, this: Breyer is devoted to the idea of educating the public about the work of the court and its place in our constitutional scheme. His book advances that purpose with civility, but in his life as a justice, as opposed to his role as an author, he has thwarted an obvious opportunity to advance that mission. Breyer, so far, has been unwilling to support televising the Supreme Court's public proceedings. Breyer's thoughtful book draws readers into the court; now he should embrace a camera, so that viewers might too.