Breyer vs Scalia?

Pragmatism Strikes Back

Jeffrey Rosen//TNR

Justice Stephen Breyer
Making Our Democracy Work: A Judge's View
by Stephen Breyer


Justice Stephen Breyer’s new book arrives at a time when liberals are still hungry for a constitutional vision. In a series of polls conducted by Quinnipiac University between 2003 and 2008, 54 percent of the respondents believe that “the Supreme Court should consider changing times and current realities in applying the principles of the Constitution,” as opposed to 44 percent who believe that the Court “should only consider the original intentions of the authors of the Constitution.”

And yet, unlike the defenders of “original understanding”, the supporters of “the living Constitution” have not been able to agree on a clear interpretive approach. Justice Breyer is the only sitting Supreme Court justice who has tried to outline, in a systematic way, an alternative to originalism.

In its scope and historical detail, Making Democracy Work advances Breyer’s vision beyond the broad details that he sketched in his previous book, Active Liberty, which argued that judges should interpret the Constitution in ways that promote democratic political participation rather than short-circuiting it.

He sets out to answer a basic question about democratic legitimacy: how can judges earn the public’s confidence, so that Americans will follow even those opinions with which they disagree?

And he offers two principles, drawn from history and experience. The first is that the Court should reject rigid originalism, instead viewing “the Constitution as containing unwavering values that must be applied flexibly to ever-changing circumstances”; and the second is that the Court, when interpreting the Constitution, should “take account of the role of other governmental institutions and the relationships among them.”

Breyer is a staunch pragmatist, and he emphasizes that in building practical working relationships with the President and Congress, the Court should recognize that its decisions have real-world consequences, and take those consequences into account.

Breyer’s book begins by exploring four historical controversies in which the public accepted Supreme Court decisions that substantial numbers of people thought were wrong:

Marbury v. Madison, in 1803, in which Chief Justice Marshall established the principle of judicial review and avoided a conflict with President Jefferson;

Worcester v. Georgia, in 1832, in which Marshall protected the rights of the Cherokee Indians over the objections of President Jackson;

Dred Scott v. Sandford, in 1857, in which Chief Justice Taney struck down the Missouri Compromise and mobilized opposition led by Abraham Lincoln;

and Cooper v. Aaron, in 1958, in which the Court led by Chief Justice Earl Warren unanimously ordered Governor Orval Faubus to integrate the schools in Little Rock.

Breyer’s historical narratives are vivid and full of surprising details. He describes highly technical opinions—such as Justice Benjamin Curtis’s dissent in the Dred Scott case—in lively and accessible ways, and documents how extensively Lincoln relied on Curtis’s dissent. He also unearths relevant details about the political and legal context of the four cases, such as the misleading report that the military filed to justify the Japanese internment, and the Solicitor General’s refusal to cite the unreliable report explicitly.

Although the four cases are different, Breyer says, they illustrate that the public has “developed a habit of following the Court’s constitutional interpretations, even those with which it strongly disagrees,” and that this habit has supported the Court’s increasingly confident assertion of “judicial supremacy”—namely, the principle that the justices are supreme over the president and Congress in the interpretation of the Constitution.

But do these historical examples really support a view of heroic judges fearlessly and successfully protecting unpopular minorities in the face of “strong” opposition from the political branches and the public?

As Breyer notes, the principle of judicial supremacy that the Court asserted in Cooper—namely, that the president and Congress are obligated to follow the Court’s interpretation of the Constitution not only in a particular case but in all similar cases—went far beyond Marshall’s more modest claim in Marbury that all three branches of government are “bound by” the Constitution and entitled to interpret it on their own.

Moreover, Breyer’s examples suggest that the Court is generally ineffective in sustaining constitutional interpretations that are intensely contested by the President and Congress: in the two cases where Presidents or national majorities strongly rejected the Court’s interpretation—the Cherokee Indians case and Dred Scott—the Court was ultimately unable to enforce its constitutional vision. It was only where the President and Congress supported, or at least tolerated, the Court’s decisions that the justices were able to prevail over opposition from a minority of the country.

More generally, Breyer does not discuss the extensive literature by political scientists and others suggesting that the real reason that the Court has generally maintained its legitimacy over time is that it rarely challenges public opinion in a sustained way, even in cases that the public does not follow closely. Breyer’s focus on the need for the Court to persuade the public to accept unpopular opinions may underestimate the degree to which the Court is highly constrained by public opinion; seldom issues opinions that are strongly unpopular with national majorities; and gets into trouble on the few occasions when it sticks its neck out too far.

In the latter half of his book, however, Breyer persuasively acknowledges the Court’s inability to act unilaterally by arguing that it should consider—and often defer to—the institutional views of the President and Congress in deciding cases. Here Breyer shows an appealing humility, which contrasts with the grandiosity of originalist judges who believe they have a unique ability to discern the one and true meaning of the Constitution, and to put the other branches in their place.

This hermeneutical modesty, more than any other quality, is what the most successful justices, notably John Marshall, have deployed to shore up the Court’s fragile legitimacy—never picking fights with the other branches that they cannot win. As Marshall remarked, “I am not fond of butting against a wall in sport.”

Breyer’s institutional modesty suggests that he, far more than the conservative originalists, has inherited the mantle of judicial restraint from Brandeis and Holmes. But like all approaches, institutional modesty has its limitations. One criticism of Breyer’s moderation in interepretive ambition is that he can be, at times, too accommodating of the other branches, too willing to enmesh the Court in constitutional compromises that it would do better to avoid.

In his discussion of Korematsu v. U.S., from 1944, the case that upheld the exclusion of Japanese Americans from their West Coast homes during World War Two, Breyer makes clear that he agrees with Justice Frank Murphy’s dissenting opinion. But in a surprising passage, Breyer goes on to suggest that the Court could have converged on a pragmatic compromise that would have upheld the internment of some Japanese Americans by crafting appropriate safeguards and procedures.

The Court might “have found a workable way to hold the president constitutionally accountable,” he writes. “Perhaps it could have developed a sliding scale in respect to the length of detention and the intensity of its examination of the circumstances. Perhaps it could have insisted that the government increase screening efforts the longer an individual is held in detention. Perhaps it could have required the government to have had in place from the beginning a plan for future screening … As it was the Court majority understood the danger of excessive judicial interference in military affairs, but it did not satisfactorily address the problem of insufficient judicial involvement.”

But if the Court’s decision “hurt the interned Japanese by validating their interment,” as Breyer suggests, wouldn’t it have hurt itself by validating the interment of a smaller group of the detainees with judicially crafted safeguards? What sort of pragmatism is this? As it turned out, on the same day that it struck down Korematu’s exclusion, which had been endorsed by the President and Congress, the Court refused to endorse the continued detention of another American citizen, Mitsuye Endo, which Roosevelt and Congress had never endorsed. Wouldn’t the Court have dug itself in deeper by saying that Endo, or other Japanese Americans suspected of disloyalty, could, in fact, be detained as long as the government followed appropriate procedures?

Similar questions may be raised about Breyer’s positions in four related Guantanamo cases involving the President’s power to detain suspected enemy combatants in the war on terror. In the Hamdi case, in 2004, Breyer joined Justice Sandra Day O’Connor’s plurality opinion holding that the Constitution permitted the Bush administration to classify an American citizen as an enemy combatant, despite the lack of Congressional authorization. But the opinion added that judges should create procedural safeguards, such as access to lawyers. The obvious objection to the Hamdi opinion was that it failed to respect Congressional prerogatives: why should judges allow President Bush to act unilaterally, inventing judicial oversight mechanisms to save him from his worst instincts, rather than forcing him to ask for Congressional support?

In the Hamdan case in 2006, the Court became less accommodating, insisting that Bush could not create military commissions without Congressional approval. Bush responded by asking Congress to approve his commissions, and Congress promptly obliged, passing the Military Commissions Act of 2006. But then, in the Boumediene case, Breyer joined Justice Anthony Kennedy’s majority opinion holding that Congress could not suspend the writ of habeas corpus in the absence of an emergency, and therefore the procedures Congress created were invalid. Once again, respect for the prerogatives of Congress might have led the Court to construe the Military Commissions Act narrowly: by holding that Congress hadn’t suspended habeas corpus, the Court could have avoided constitutional difficulties. As Breyer acknowledges, “one cannot characterize Boumediene as a case that followed Congressional directions or implemented Congress’s broader purposes.”

So Breyer’s pragmatic attempts to promote inter-branch cooperation in particular cases is sometimes open to question, and the same may be said of his various applications of what he calls the “proportionality principle,” which encourages judges to balance competing constitutional values in cases where they conflict. In interpreting the Second Amendment right to bear arms, for example, Breyer says that judges should balance a handgun ban’s “efficacy, in term of community safety, with the obstacles it imposes to self-defense.”

But you do not have to agree with all of Breyer’s specific conclusions to admire the transparency and the nuance of his judicial approach. This is constitutional interpretation for adults, an interpretive guide that recognizes that the Court has always depended on the other branches to enforce its constitutional vision, and that if the Court refuses to moderate and balance competing values in a candid way, the more polarized political branches are unlikely to step into the vacuum. Breyer is impressive in presenting an integrated theory not only of constitutional interpretation, but of legal interpretation in general, suggesting that judges can interpret Congressional statutes, administrative decisions, prior precedents, and questions involving federal and state relations in a way that promotes democratic deliberation.

Pragmatism, as Breyer defends it, cannot be summarized on a bumper sticker or a poster, and therefore it will never have the political appeal of originalism, which misleadingly—but in politics, attractively—promises simple answers to hard questions. But it is the complex and careful Breyer who accurately describes how the Court has in fact maintained its legitimacy over time: by viewing itself as a partner of the president and Congress, not as some sort of Platonic guardian.

Most important, Breyer’s willingness to present his argument in terms that educated citizens can understand, in the hope of persuading all of us to participate actively in American democracy, exemplifies an idealism about what is possible in a democratic citizenry, and an optimism about it, that is as impressive as it is rare on the Supreme Court.

Breyer’s book might be described as a work of democratic pedagogy, and a very admirable one. Unlike other justices, who have written memoirs emphasizing their upbringings or the personal difficulties they have overcome, Breyer is a teacher in the best sense, offering a tentative framework for evaluating the Constitution and encouraging citizens to debate with him about the details. More than his particular conclusions, it is the power of his intellectual example—his openness to opposing points of view and his recognition of the difficulty and necessity of trying to balance them—that makes his message urgently relevant in, and a kind of balm for, our polarized age.