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4.1 out of 5 stars
Making Our Democracy Work: A Judge's View
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123 of 130 people found the following review helpful
VINE VOICEon September 21, 2010
Format: HardcoverVerified Purchase
This book is a continuation of the dialogue Justice Breyer began in his previous work "Active Liberty." There, he argued that the Court should implement greater participation of citizens in their government. Although he touched at points upon the originalist/literalist approach to interpretation favored by Justices Scalia and Thomas, in his typical polite and reasonable fashion he preferred to explain his approach rather than lob grenades at their dedication to text and originalism. This book too is polite and reasonable, but aims to look at a wider and more fundamental issue--how can the Court contribute to making a "workable democracy" by applying enduring constitutional values to ever-changing circumstances. The short answer in this pragmatic-oriented book, is for the Court to build productive relationships with other governing institutions, as it protects individual rights and searches for the values underlying the Constitution. In short, Breyer is again arguing for what might be termed a greater degree of "judicial modesty" which facilitates better governance.

Breyer first discusses the concept of judicial review, where it came from in Marbury v. Madison, and how history demonstrates (in the Cherokee removal, Dred Scott, and the Little Rock desegregation cases) how dependent the Court is upon ephemeral public support. Breyer is unique in his ability to explain historical and legal concepts in terms that the general reader can assimilate--a rare talent indeed. Basically, Bryer concludes, as long as the Court's opinions are "principled, reasoned, transparent and informative" it will hold public support. Once again, I was disappointed that his discussion of the Bush v. Gore case is highly polite and reasonable and does not, I am sure, reflect the intra-Court dynamics involved in that sad episode.

One of the most masterful sections of the book is where the Justice discusses why he thinks originalism, reliance upon text, and founders' history are not determinative in interpreting the Constitution or statutes. As usual, he is polite and positive, but he makes his point well. Rather, reliance upon purpose and consequences constitute a superior approach.

So, how should the Court proceed to build cooperative relationships? Breyer devotes individual chapters to answering this question as relates to Congress and statutes ("reasonable" interpretation), the executive branch and administrative agencies (recognize its greater expertise than courts), and the states and federalism (like Justice Brandeis, recognize the benefits of state and local experimentation and defer strongly). Two the best chapters in the book, for both the general reader and those better versed in the issues, address how the Court should deal with lower federal courts, and why precedent is important and when it should be followed (the current Court majority might find this discussion particularly illuminating).

The final section of the book deals with concepts such as permanent values, proportionality, "core elements," and "workable reality." These are somewhat intangible concepts, and Breyer's discussion may encourage some to embrace originalism, history and text as somewhat more substantial interpretative guidelines. He uses the Court's recent decisions in the Second Amendment and Guantanamo prison cases, as well as the 1940's Japanese relocation cases, to explore these concepts. It is quite interesting to peek into the mind of a sitting Justice (as it was with "Active Liberty") to see how he perceives the Court's role. This dimension is as helpful to the experienced student of the Court as it is to the average citizen.

The book runs some 254 pages including notes, and contains some illustrations and an appendix designed to quickly educate the general reader about the Court and how it works. Although sometimes Breyer seems to be "up in the clouds" as he tackles ephemeral concepts, there is no question that this is one of the rare books that really opens up the reader's mind to new concepts and considerations.
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35 of 37 people found the following review helpful
on September 24, 2010
Format: Hardcover
I liked this book for many reasons, but two stand out. First, it is an interesting contextualization of the path our country has taken starting out from the basic "idea" of the role of the Supreme Court in the American political system as envisioned by the Founders, to the current manifestation of that role, replete with twists and turns along the way. Second, and very much in the intellectual spirit of his previous book (which I also really liked), it is a reminder that our government is only as good as we, its citizens, are: active, educated and engaged participants allow the engine to function as it should, with the Court serving in its role as, in Justice Breyer's words, the border patrol that makes sure nothing enacted by Congress violates the basic precepts forth by the framers. I enjoyed Justice Breyer's prose style and also found the individual cases he discusses, and his take on them, incredibly interesting in their own right. I would highly recommend this book to anyone, left right and center, who has a pulse and cares about our country ... how a series of ideas set forth a couple hundred years ago are being manifest in contemporary American society. An important book that I suspect history will look on kindly.
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22 of 23 people found the following review helpful
on September 28, 2010
Format: Kindle EditionVerified Purchase
First, I think it's important to state that I don't think Breyer wrote this book to promote a political point of view. Quite the opposite: he shows remarkable restraint and a willingness to try and explain fairly the basis for differing opinions held on important cases.

His reason for writing this book was to educate U.S. citizens how government works and the principles that judges and justices try to follow in deciding cases. He explained his hope that, if we better understand these things, we'll have more confidence in our government and be actively interested in how our government works. Better citizens, in other words.

I'd say that there is one subject that gets Breyer up on his soapbox: he firmly believes that the courts can produce the best results in support of a workable democracy by applying a practical consideration of legislative intent, values, subsidiarity, specialization, appropriate deference to expertise and several other concepts. He makes a pretty good case for this approach. Each additional layer of guiding principles, taken by itself, seems reasonable enough, but when he guides the reader through the balancing act that judges have to go through in selecting and applying the relevant principles in appropriate proportion to a particular case, it really gave me an appreciation for how difficult and complex this can be.

I especially enjoyed his review of a number of landmark cases, including Marbury vs Madison, Dred Scott, Brown vs Board of Education, a couple of cases regarding Japanese internment during WWII and four cases involving Guantanamo detainees. Very informative.

Breyer's writing style is clear, easy to follow, and a pleasure to read. I highly recommend this book.
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22 of 23 people found the following review helpful
on October 6, 2010
Format: Kindle EditionVerified Purchase
Any book by a Supreme Court justice is worth reading, this book is not an exception. The case discussions are at a law school constitutional law class level. In this sense, this part of the book is not new for lawyers, but non-lawyers will find it enlightening.

Where the book excels is the rich detail that surrounds cases. That detail helps to understand what justices who employed the pragmatic approach would have considered.

After reading sections such as the pragmatic approach vs. the originalism approach, I felt the book was incomplete; I needed to get a more complete view. The book's last paragraph suggests that was Justice Breyer's intent when it states "The stories this book sets forth are told from the point of view of one judge", "I hope they lead others to study and ponder their lessons about our constitutional history."

If the book gave a more balanced view, not necessitating further research on my part, I would have given it another star, perhaps I am being too grudging with the 5th star.

Suggestion for reading this book. Look over the appendices first, because:
* The text of the book doesn't mention there are photos in the back.
* The back contains a well written explanation of how the Supreme Court works.
* All the footnotes, really endnotes, are in the back of the book; in legal writing much can be gained by reading the footnotes.
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14 of 15 people found the following review helpful
on June 22, 2011
Format: Hardcover
If you have ever wondered how Justices on the Supreme Court aspire to decide cases, Justice Breyer's book provides some insight. His thesis is how the Court can make decisions while retaining its legitimacy. That means the decisions must be grounded in certain tools and institutions. The book opens with some major cases such as Marbury v. Madison which first established judicial review, the Cherokee Indian cases which led Andrew Jackson to ignore the court, Dred Scott involving slavery and who would have the rights of citizenship, the implementation cases following Brown v. Board of Education desegregation order, and Bush v. Gore where the Court stepped into an electoral mess and emerged largely unscathed despite great fear at the time. Breyer provides a bit more context for these cases than many casual readers might already have. The book then goes on to discuss the different types of legal interpretation, including to some extent those Breyer does not agree with such as originalism/original intent. Although I side towards the Breyer end of the spectrum, I did not agree with all of his interpretive tools especially his faith in statutory interpretation based on legislative history. Legislative history has its place, but I cannot help but feel as though it is a widely accepted tool for convenience more than its accuracy or usefulness. Without it there would be great difficulty anchoring statutory interpretation into Congressional intent at all, but with it we fail to acknowledge some of the realities of how the legislature operates and how often there is no intent for certain legislative provisions or real world outcomes. The book then discusses the different institutions of government, including the three branches of the federal government and the states and how each plays a role. There is also a discussion of precedent and individual liberty here, which are shoehorned into some extent. The book closes with a discussion of detention cases from Korematsu during World War II to Guantanamo today.

If you have gone to law school recently or follow the Court closely, some of the book may be a little too basic in its discussion of how courts work. But Breyer's overarching point, that judges need to act a certain way to retain legitimacy, has value. In law school professors often used to ask if judges made decisions based on what they had for breakfast. Meaning there was no absolute legal truth but just a judge's discretion. Law professors were usually dismissive of this idea and certainly judges are not as random as basing decisions on how their eggs were prepared. But judges do walk in with preconceived notions and it is hard to look at the Supreme Court today and not know on most cases how justices will line up on a case. Breyer's book tries to show interpretive principles judges use to either justify those preconceived notions or divert from them. Which way they tend towards and how far they go is up to the reader to judge.

For its history and ideals of judicial process, Breyer's book is a good read for anyone, but especially non-lawyers who may be less familiar with much of what he discusses.
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20 of 24 people found the following review helpful
on September 23, 2010
Format: Hardcover
This book is a page turner and highlights the hallmarks of Justice Breyer: wisdom, insight, modesty and a deep belief in the US system of government.

The first part of the book highlights the Court's role in the suppression and later provision of Civil Rights for minorities in the US. Justice Breyer's storytelling is very moving and shows his depth of knowledge and understanding of the constitutional issues.

The rest of the book deals with the art of judging and duties and obligations of the Court.

This is a highly stimulating and well written book. More importantly, I believe it is an important book for our times. I highly recommend it.
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20 of 24 people found the following review helpful
on October 4, 2010
Format: Kindle EditionVerified Purchase
The negative reviews of this book treat it as just another radical liberal screed. Those reviewers either have not read the book or have a huge political chip on their shoulders. Thoughtful, reasoned and sober are the adjectives that first come to my mind. If you are interested in an enlightened exposition of the proper balance between the Executive, Legislative and Judicial branches of government this is a great place to start.
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3 of 4 people found the following review helpful
on November 5, 2010
Format: Hardcover
In "Making our Democracy Work," Justice Breyer expands upon his treatise "Active Liberty" with several interesting examples of how the Judiciary established its role, and how it needs to act to maintain credibility as the guarantor of liberties established in the Constitution. Justice Breyer's uses counter examples, such as Dred Scott, showing the Court doesn't always get it right (and history may hold one of the negative reviews here correct with a couple more counter examples).

I had hoped this work would expand a bit more on the role of the citizen in making our democracy work, but Justice Breyer really only pays lip service to this in the Conclusion. Still, illuminating the role of the weakest branch of government through the lens of some of our history's most important and controversial cases provides a fascinating peek into the function of the court.

The thoughtfulness that goes into deciding cases should make us all thankful that the Founding Fathers had the foresight to implement independent checks and balances in the American form of government.
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1 of 1 people found the following review helpful
on October 20, 2010
Format: HardcoverVerified Purchase
Stephen Breyer presents a comprehensive history of the Constitution and beginning of our nation with the debates surrounding some of the elements of the Constitution by our founding fathers during the administration of President Washington through to today. He describes how the importance of the court system evolved over time, especially the unique role of the Supreme Court.

The areas of law that the Supreme Court reviews are outlined with different chapters discussing each area, provides examples and reasoning behind both the majority decision and dissenting viewpoint giving validity to both. It is highly readable with explanations provided in layman's terms. A must read for all who are interested or desire to learn the importance and workings of our highest court.
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on September 20, 2014
Format: Paperback
Supreme Court Justice Breyer takes an honorable stab at explaining to laypeople such as myself the importance and complexities of determining the Constitutionality of certain laws.The author has a clear respect for the history of our nation and, like all the justices on the Supreme Court, a deep respect for the Constitution. In the introduction, Justice Breyer urges you to read the Constitution as well as the Appendix located in the back of his book before starting his work. I took his advice and read TIME's very helpful "The Constitution: The Essential User's Guide" to be better prepared. TIME's version is a quick read and I felt their book helped.

The author first lays out the logic the Founding Fathers used to create our new system of government and how the Supreme Court slowly evolved over our two-hundred-plus-years to help our judicial system earn the public's trust. There were some major missteps such as their Dred Scott decision, Plessey v. Ferguson, and Japanese internments during World War II. Georgia's blatant disregard for the law with their forced migration of the Cherokee nation people off their legal land especially made my blood boil. Justice Breyer also stresses the importance of judges writing convincing, clear arguments as to why they ruled in a certain way. It also shows how very intelligent individuals can come to different conclusions about an issue.

You may not like some or, heck, even many of the Court's rulings, but our nation's willingness to abide by their decisions and not take up arms is a true testament to the great regard we hold the law. The Supreme Court's highly controversial ruling on Bush v. Gore during the 2000 presidential election is a shining example of it. I stepped away from Justice Breyer's book with a deeper appreciation of the complexity of issues judges must tackle as well as feeling darned proud of how far we've come as a nation.
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