Originally published in the New York Times Book Review, September 19, 2010
"If my fellow citizens want to go to hell," Justice Oliver Wendell Holmes once wrote, "I will help them. It's my job." This, for much of the last century, has stood as the purest (or at least the most pungent) distillation of "judicial restraint" -- the idea that judges should, for better or worse, leave the business of governing to the people's duly elected representatives. As practiced by the jaundiced Holmes, restraint was often a shrug of the shoulders: lawmakers, in his view, were predisposed to foolishness, and the Constitution entitled them, in most cases, to be fools.
Justice Stephen Breyer, appointed to the Supreme Court by President Clinton in 1994, is also a believer in restraint. Statistics reveal that over the years, Breyer has been less willing than any of his fellow justices to overturn acts of Congress (a fact that belies the notion, peddled by conservative pundits, of liberal judges as legislators in robes, ruling the country by judicial whim). Yet Breyer, unlike ¬Holmes, is optimistic about the outcome. He may, in fact, be the only American who still believes that members of Congress, as he has said, "really are mostly trying to do the right thing" -- a faith he attributes to his years as a Congressional staff member.
That spirit pervades Breyer's provocative new book, "Making Our Democracy Work," which portrays judges not as aloof, indifferent observers of the American experiment, but as essential partners in that project. They fulfill that role, Breyer argues, by building "productive working relationships with other institutions" -- Congress, the White House, states, independent agencies, school boards, lower courts and the like. He acknowledges a tension, but no contradiction, between helping these institutions operate more effectively and curbing their constitutional excesses.
In an era characterized by interbranch antagonisms, Breyer's call for cooperation may sound utopian to some. It also seems at odds with the independence of the judiciary. Yet it is neither a new nor a radical notion. In 1939, Chief Justice Charles Evans Hughes described the judicial branch as "a separate but not an independent arm of government." "In the great enterprise of making democracy workable," he argued, "we are all partners." Breyer traces this view back even further, to the nation's founding. "The Constitution's most basic objective," he writes, is "the creation of a single nation," a goal it advances "by creating political institutions strong enough to permit the 'people' to govern themselves."
The court, Breyer says, echoing Holmes, Louis Brandeis, Felix Frankfurter and other apostles of judicial restraint, keeps faith with the founders when it supports "local control and local experimentation" -- when it gives other officials leeway to apply their expertise to questions of policy and law. He hastens to point out that the court need not -- must not -- grant them deference in every instance. It cannot abdicate its role as guardian of constitutional liberties. But it should, at the very least, "hesitate before substituting its own judgment for that of Congress" or other bodies.
When Breyer urges courts, starting with his own, to "recognize and respect the roles of other governmental institutions," one imagines Justice Antonin Scalia's eyes rolling. But Breyer's aim is not agreeability. His is not a hold-hands, link-arms, let's-be-friends jurisprudence. It is more purposeful than that. Again, Breyer's goal is for the system to work, to solve problems, to improve our national life.
Still, as a pragmatist, Breyer must know that words like "recognize" and "respect" can be as elusive in their meaning and as inexact in their application as, say, "due process," "equal protection" or any other such phrase in the Constitution. Readers of Breyer's book -- whether judges, practitioners or, as the rest of us are charitably known, "nonlawyers" -- will look here in vain for a quick-and-easy guide to the act of judging. Breyer sees nothing quick or easy about deciding a case. He offers no neat, pat, "grand view of law," as he puts it, no "all-encompassing theory" to match that of so-called originalists like Scalia and Justice Clarence Thomas.
Instead, Breyer embraces, indeed relishes, complexity. Like a law professor, he proceeds mostly by inductive reasoning, offering specific examples -- including some of the most contentious Supreme Court cases of recent years -- to show how judges can patrol constitutional boundaries while, at the same time, giving people room to govern themselves. Here, as in his previous book, "Active Liberty," Breyer places emphasis on the purposes of statutes and of constitutional provisions, the real-world consequences of judicial decisions and the need to apply the Constitution's basic values to changing circumstances.
"Making Our Democracy Work" does not ring forth with bold, rousing attestations. It is, like Breyer himself, deeply thoughtful and a little dry. But make no mistake: this is a brave book, not least because its author is a Supreme Court justice. Breyer strides right into a roiling debate -- at a time when legal thinkers on the left are struggling to develop a jurisprudence with anything like the clarity (or, rather, the certainty) of that on the right. Alone among the liberal justices, Breyer has taken it upon himself to arm progressives with ideas, practical tools and, perhaps, a certain self-confidence.
They need all of the above. Though he is too civil to say so, Breyer and the court's liberals, including their newest member, Elena Kagan, are up against the most assertive and, let's just admit it, activist bloc of conservatives in modern memory. According to a recent analysis, even the right-leaning justices of the 1930s -- the "Four Horsemen" who tried to derail the New Deal -- are moderates when compared with John Roberts, Samuel Alito et al.
This gives Breyer's argument its edge. Restraint, he writes repeatedly -- and with increasing force -- is essential if the least democratic branch is to maintain its legitimacy. He opens the book, perhaps pointedly, with historical examples of outright defiance by presidents or states, of the bad old days when Supreme Court decisions were frequently flouted. "Public acceptance is not automatic," he warns, speaking, it seems, to the court's conservatives. Breyer adds that "when the court proceeds down a wrong track too long," as it did, for example, in its battle with Franklin Roosevelt over the fate of the New Deal, "the public can become aware and react," putting the rule of law at risk.
It is surely too much to ask of a sitting justice, but one wishes Breyer would tell us just how far he thinks the Roberts court can go down its particular path before provoking a sustained political backlash like that of the 1930s -- as opposed to scattered protests. Breyer's admonitions aside, the risk of reprisal appears, at least at this point, remote. If history is any guide, the court can weather most storms of its own making. It has to get pretty far out on an ideological limb -- and stay there awhile -- before citizens become truly engaged. As Breyer himself notes, "the public has developed a habit" of accepting the court's rulings, even egregious ones like Bush v. Gore. While he is right to add that the habit "cannot be taken for granted," it, and thus the court itself, has proved pretty durable.
So the court's conservative ascendancy has a wide margin of error. The five men in the majority seem certain to press their advantage in the term about to begin. They too believe they are making democracy work -- not by helping other institutions but by frequently correcting, overriding and impeding them. Still, Breyer, it must be said, is building an argument for the ages, not a strategy for the coming term. In his mild way, he is issuing a clarion call to future generations. The Constitution, as Justice Robert H. Jackson once observed, "contemplated a really effective government," and Breyer's book makes clear that judges, however modest or restrained, have an indispensable role in making it work.