By David Fontana
Sunday, October 3, 2010; B06
MAKING OUR DEMOCRACY WORK
A Judge's View
By Stephen Breyer
270 pp. $26.95
Supreme Court justices are rarely seen in public, and even more rarely seen in public talking about how the Supreme Court should handle controversial constitutional cases. But since the release of his new book, "Making Our Democracy Work," Justice Stephen Breyer has been hard to miss doing precisely that, on shows such as "Charlie Rose" and "Larry King Live" and at places such as the National Archives in Washington.
Five years ago Breyer wrote a book about the Constitution, but "Making Our Democracy Work" is a more sweeping attempt to articulate a progressive vision of that document to compete with the vision articulated by conservative jurists such as Justice Antonin Scalia. Breyer wants courts to interpret the Constitution by considering many factors, including how to make judicial decisions workable. The complexity of this pragmatic constitutional theory makes it compelling, but that same complexity makes Breyer's approach difficult for the public and politicians to accept.
It is hard to understand Breyer's approach to the Constitution without first considering the alternative that he is responding to, conventionally called originalism. Originalism, as Scalia has described it, means that the Constitution should be interpreted according to what those alive at the time of its drafting thought its words meant. By any measure, originalism has become a major source of constitutional meaning, relied on by courts and politicians alike. When the Supreme Court decided its landmark gun rights case in 2008, Heller v. District of Columbia, the liberal and conservative justices didn't argue mostly over whether original understanding was important -- instead, they argued about what the correct original understanding of the constitutional right to bear arms should be. Liberal or conservative, we are all originalists now.
But Breyer wants courts to rely on much more than just originalism, and he argues for a vision of the Constitution focused not just on opinions from the 18th century but also on considerations from the 21st. Breyer believes that, in ruling on constitutional issues, judges should also look to "history, tradition, precedent . . . purposes and related consequences," all in an attempt "to help make the law effective" and to help courts engage in a workable relationship with the other branches of government.
Breyer's approach has a realism that is hard to ignore. It can be difficult (and perhaps undesirable) for judges to decide cases mostly based on materials from the 18th century. Only at the most general level can someone like James Madison tell us much about what the Constitution means for free speech on the Internet or rights owed detainees at Guantanamo Bay. Many of those who otherwise subscribe to originalism allow for some departures from the original meaning. Very few judges, of any political stripe, would condone public executions, for instance.
But just when Breyer's book starts to succeed as a sophisticated yet comprehensible academic work, it runs into problems. Simply put, pragmatism might be practical for judges to apply, but in today's climate it might be a hard political sell. Originalism urges us to ask a singular question, one that sounds heroic: What did the revolutionary generation that created the document that we revere, the Constitution of the United States, understand it to mean? In the 2012 presidential election, it will be difficult to campaign against the confirmation of judges who say they decide cases based mostly on what Madison and his contemporaries thought about the Constitution. Americans revere the founding fathers and the American Revolution, and buy books about both in droves, and asking judges to follow the thinking of those alive at that time has a strong popular appeal.
By contrast, deciding cases based on multiple factors can sometimes appear more legislative than judicial, particularly when those several factors include Breyer's interest in what is workable. Scalia can be quite convincing in a public forum when he touts the single standard of originalism as the embodiment of what he calls the "rule of law as a law of rules." He also often succeeds in persuading audiences that the pragmatic approach favored by those such as Breyer amounts to little more than judges deciding cases based on their personal feelings about what constitutes good policy. Ultimately, pragmatists such as Breyer can sound like that dreaded figure of contemporary politics, the judicial activist, while originalists seem like the umpires that Chief Justice John Roberts held up as the models for judges at his confirmation hearings.
In the end, then, Breyer's book is both quite successful and not successful at all. It is perhaps the most honest discussion of what a judge should do that you will ever find, all the more remarkable because it is written by a sitting Supreme Court justice. But it is also an example of the complexity that makes progressive approaches to the Constitution so challenging to sell to wider audiences.
David Fontana is an associate professor of law at George Washington University Law School.