Justice Stephen Breyer: Making Our Democracy Work
U.S. Supreme Court Associate Justice Stephen Breyer visited Vanderbilt University Law School today to deliver a lecture, teach a class on administrative law (the subject he taught while at Harvard Law School, where he was a professor from 1967 to 1980), and sign copies of his book, Making Our Democracy Work: A Judge’s View. I have yet to read the book, but I have loosely kept up with Breyer’s recent interview tour. My interpretation is that the Justice, very frequently in the the minority in his years on the Court, felt the need to explain and preserve his judicial philosophy in an extrajudicial manner. There is precedent for judges setting out their jurisprudential views in book form, and even though Breyer probably wouldn’t admit it, Making Our Democracy Work feels a little bit like a response to A Matter of Interpretation: Federal Courts and the Law, a 1997 book by Breyer’s colleague, Justice Antonin Scalia. I plan to post a review here once I finish Breyer’s new work, and I am hopeful that it will be more timely than my last book review.
Breyer’s lecture began with an explanation of Alexander Hamilton’s vision of the role of the Supreme Court in the federal government, and, taking this as a launching point, sought to illustrate through examples the ways in which we have tried to answer a practical question the Founders could not: how will the justices navigate their role as unelected officials charged with making decisions that may contravene the actions of the elected branches. Breyer compared Worcester v. Georgia, 31 U.S. (6 Pet.) 515 (1832), Brown v. Board of Education, 347 U.S. 483 (1954), and Bush v. Gore, 531 U.S. 98 (2000) with a focus on the enforceability of unpopular decisions. Following Worcester, President Andrew Jackson refused to adhere to Chief Justice John Marshall’s ruling that Cherokees living in northern Georgia were allowed to stay on their land, instead sending them on the Trail of Tears to Oklahoma. The tumult in Arkansas following the Brown decisions is a well-know part of American civil rights history. This time, though, the presidential use of the military was in obedience of the Court’s ruling. Finally, Breyer observed that, while anger and resentment followed the Bush decision, a peaceful transfer of power in accordance with the Court’s decision took place. Then and today, Breyer said that he thinks Bush was wrong, but he also noted his agreement with Senator Harry Reid’s view that this nevertheless was an appreciable moment in American history for the public’s response. See here. Breyer also commented on two additional controversial cases: Dred Scott v. Sanford, 60 U.S. 393 (1857) and Korematsu v. U.S., 323 U.S. 214 (1944). For Breyer, these two cases illustrate conflict between the Court and the Executive in a war context. Disagreeing with both outcomes, Breyer acknowledged that Korematsu raised the question of which governmental branch should be running a war– placing his theme of democratic deference in a difficult light– but seemed to argue that the facts were such that the Court could have deferred to the Executive without reaching the outcome it did. Despite a supposed attempt by Chief Justice Roger B. Taney to rule in such a way as to avoid a civil war, Dred Scott, Breyer said, is the Court’s worst decision.
I enjoyed Breyer’s remarks, and I liked how he incorporated rule of law and civic discourse and dispute resolution themes into the Hamiltonian framework he referenced throughout his talk. I also found helpful the way he presented the three cases in chronological order to highlight a developing answer to the question the framework implied. It was good to see the Justice, age seventy-two, in strong form, and I am looking forward to reading his book.
UPDATE: VULS has made available a video of the entirety of Breyer’s lecture: