Making Our Democracy Work: A Judge's View

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 Courts decisions as legitimate and follow them, even when those decisions are highly unpopular? What must the Court do to maintain the publics 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 publics confidence in the Court for granted. He reminds us that at various moments in our history, the Courts 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 stepsand the misstepsthe 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 thatpublic confidence and argues for interpreting the Constitution in a way that works in practice.He forcefully rejects competing approaches that look exclusively to the Constitutions text or to the eighteenth-century views of the framers. Instead, he advocates a pragmatic approach that applies unchanging constitutional values to ever-changing circumstancesan 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 actorssuch as the president, Congress, administrative agencies, and the statesplay in our democracy, and he emphasizes the Courts obligation to build cooperative relationships with them.

Finally, Justice Breyer examines the Courts recent decisions concerning the detainees held at Guantnamo 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 Courts greatest intellectuals and a leading legal voice of our time.