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Making Our Democracy Work: A Judge's View Hardcover – Deckle Edge, September 14, 2010
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From Publishers Weekly
Starred Review. Justice Breyer (Active Liberty) looks at how the Supreme Court evolved historically and defined its role largely in relation to the willingness of the public to embrace its decisions. Readers may be surprised to learn that in many democracies, parliaments are not bound to accept decisions by their court; similarly, the U.S. Constitution doesn't give the Supreme Court final say. Breyer tells the story of President Jackson's grudging acceptance of a Court decision protecting the treaty rights of the Cherokee nation, only to seize their land using Federal troops. In the Dred Scott decision, the pro-slavery Court violated the right of Free states to outlaw slavery. And in Brown vs. the Kansas Board of Education, President Eisenhower used the Army to back up Court decisions against segregated education. Breyer discusses recent Court decisions in favor of rights for Guantanamo detainees and examines the limitations of a President's power as Commander-in-Chief, even in wartime, contrasting this to the failure of the Court, Congress, and President Roosevelt over internment camps during WWII. An accomplished writer, Justice Breyer's absorbing stories offer insight into how a democracy works, and sometimes fails. (Sept.)
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Justice Breyer was appointed to the Supreme Court in 1994 (and, of course, he serves for life, as mandated by the Constitution). His book partners well with Jeffrey Toobin’s well-received The Nine (2007), which is an account of the politics and personalities of the current Supreme Court. Breyer projects a larger context, supplying both historical and judicial background to give the nonspecialist a generalized picture of how the Supreme Court works. He explains the Court’s role in ensuring a workable democracy, in guaranteeing that the Constitution works in practice and in the real world. Certainly an interesting aspect of this greatly informative book is Breyer’s look back over the history of the republic to see how the public—and even the U.S. president—has accepted Court decisions. (It is not readily imaginable, to be sure, but, nevertheless, it is dramatically illustrated here that such acceptance was a principle that was not easy to plant within social and political consciousnesses.) Breyer is emphatic that “at the end of the day, the public’s confidence is what permits the Court to ensure a Constitution that is more than words on paper.” A book for all citizens. --Brad Hooper
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Part 2 did help me understand, I think, why Breyer sometimes swings right on criminal cases. The bloc of Alito, Kennedy, Roberts, and Breyer can be found in a number of cases, like Maryland v. King (2012) and Melendez-Diaz v. Massachusetts (2009). In those cases, I think Breyer opposed applying the Constitution's procedural protections in ways he considered overly extreme that would burden the criminal justice system while not substantially advancing the real purposes of those procedural protections (no one is really all that offended by a cheek swab, and almost no one really needs to cross-examine the lab analyst). The other side would argue that the Constitution's protections for defendants are supreme, and not to be violated no matter how inconvenient it is for the criminal justice system to respect them. The former fits with the approach Breyer advocates in the book, even though it is harsher on defendants and thus more traditionally a "conservative" outcome.
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.
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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