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 Court’s decisions as legitimate and follow them, even when
those decisions are highly unpopular? What must the Court do to
maintain the public’s 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 public’s confidence in
the Court for granted. He reminds us that at various moments in our
history, the Court’s 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 steps—and the missteps—the 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 that public confidence and argues for interpreting the
Constitution in a way that works in practice. He forcefully rejects
competing approaches that look exclusively to the Constitution’s
text or to the eighteenth-century views of the framers. Instead, he
advocates a pragmatic approach that applies unchanging
constitutional values to ever-changing circumstances—an 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 actors—such as the president,
Congress, administrative agencies, and the states—play in our
democracy, and he emphasizes the Court’s obligation to build
cooperative relationships with them.
Finally, Justice Breyer examines the Court’s recent decisions
concerning the detainees held at Guantánamo 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 Court’s greatest intellectuals and a leading legal voice
of our time.
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