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VINE VOICEon September 21, 2010
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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on September 24, 2010
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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on September 27, 2010
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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on October 6, 2010
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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on June 21, 2011
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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on September 23, 2010
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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on October 4, 2010
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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on January 18, 2016
MODM is a good introduction to constitutional jurisprudence. Aimed at the lay-reader, Justice Breyer works through many of the core concepts at work in what the Supreme Court (as well as other courts) do. This is especially valuable given the high percentage of Americans who form opinions about what the Constitution "says" without taking any time to study the law or the history behind it. As you may have noticed, all the people giving this one or two-star "reviews" think they already know everything about the law. For people who aren't that foolish, MODM can be very helpful in building a basic understanding of how the courts work visa-vie the Constitution. J. Breyer does a good job expressing complicated ideas in a simple way.

Recommended.
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on February 8, 2016
This is a very informative overview of how the federal court system and the
Supreme Court function in our democracy, and how they relate to the legislative and executive branches. It would be very valuable reading for anyone who is concerned about how our government works and how to improve our democracy.
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on February 26, 2014
This book will provide insight into many of the legal underpinnings of decisions reached by the U.S. Supreme Court, as viewed by one of its members. Even for a one-time law student like me, however, it's rather dry reading.
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