Supreme Court Justice Stephen Breyer

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U.S. Supreme Court Justice Stephen Breyer joins us. We’ll talk democracy, Citizens United, and life on the high court.

Justice Stephen Breyer, who has served on the Supreme Court since 1994. (AP)
Justice Stephen Breyer, who has served on the Supreme Court since 1994. (AP)

The first Monday in October, the Supreme Court goes back into session. There’s plenty swirling, on and off the docket. Some Tea Partiers want to rewrite the constitution with a balanced budget requirement.

Rick Perry says Social Security itself is unconstitutional. Just yesterday, the high court issued its third stay of execution to a man in Texas. In the thick of it all, Supreme Court Justice Stephen Breyer is thinking about what keeps the whole system working. What keeps confidence in the court. In our democracy.
This hour On Point: A conversation with Justice Stephen Breyer of the United States Supreme Court.
-Tom Ashbrook


Stephen Breyer, Supreme Court Justice and author of "Making Our Democracy Work: A Judge's View."


Supreme Court Justice Stephen Breyer weighed on last year’s Citizens United decision on the eve of the election season, insisting that it is important for Americans to respect the legitimacy and good faith of the high court, even when they believe its decisions are wrong. “. I think the majority is unpopular and wrong,” Breyer said of the Citizens case. “But still, I think it is important for the country to support the institution.”

Justice Stephen Breyer at WBUR. (Jesse Costa/WBUR)
Justice Stephen Breyer at WBUR. (Jesse Costa/WBUR)

Breyer also warned that the country itself was at risk if the population grows too cynical of the role and functioning of the government. “The Constitution itself depends on people participating, in good faith, in governmental processes,” he said.

The Justice also said he though that the court’s decision in Bush v. Gore was “completely wrong,” but noted that it was admirable that the nation accepted the ruling without unrest in the streets.

Here are some exchanges from the show:

Ashbrook: Why did you write this [book]? What are you worried about?

Breyer: There’s a great deal of cynicism about our government and the younger the people, the more cynical they are. A little cynicism may be justified. But if there’s too much, the government won’t work. Because the Constitution itself depends on people participating, in good faith, in governmental processes: in elections, in their local communities, on their school boards, on library commissions. They have to have a public part. I think the best thing that people in public life, and a lots of us think this, can do, is explain to people the best we can, how our institutions work.

Ashbrook: There have been [court] decisions that many Americans have found very challenging. [In the year] 2000, of course, we saw the decision of the Bush-Gore elections in the Supreme Court. Highly controversial. Much more recently and under this president, we saw Citizens United, where the court said that corporations, unions, had the same rights as citizens to free speech.

Now, we’re headed into an election season for the president of the United States. This is a big deal. And this is going to be a time when that ruling is in place and the money is already rolling. And a lot of people are really upset about it. The people you are counting on to support the legitimacy, the clout, the power of the Supreme Court. What do you say to them when they look at Citizens United, which seems to so empower people who may be seen as citizens, but they are not human beings?

Breyer: I say three things: First, remember, we, in a sense, on the court patrol the boundaries. The Constitutions sets very broad boundaries. Life on the frontier, on those boundaries, is not always pleasant…Is abortion inside or outside the constitution? What about school prayer? What about Bush versus Gore? What about the cases you’ve mentioned? They are always pretty difficult cases and there something to be said on both sides.

I’d like people to remember that even when they disagree-- and I disagreed in the cases you mentioned, I was in the dissent. I disagreed very strongly. But even in those cases where the Supreme Court has done something unpopular and where it might be wrong after all, we’re human. We are human beings. I mean people don’t always understand that, it’s certainly true. And if you’re a human being, you can make mistakes.

And therefore the job that I have right now is even tougher than you’ve suggested. Because I’m trying to say to the average man and woman in America, please read a little of this or learn a little of it, and you’ll see perhaps why this institution can help you. Even though you will disagree with it. And you may be right. And you may be wrong.

Ashbrook: But your book title is “Making Democracy Work,” and this is fundamental to democracy, this comes to even electing the president of the United States, this comes to electing everybody. And you’ve got a whole lot of people saying: Wait a minute. How does this work? There is great fear of money buying influence that subverts democracy, and Citizens United seems to empower that trend. So, I know it’s a tough decision, personal feelings come into play, maybe politics too, we’ll talk about that. But here are Americans that you say the court depends on their support to maintain its legitimacy and here’s a decision that to some makes it appear to make it more difficult to exercise honest democracy.

: If I risk paraphrasing: There’s been a view of the First Amendment that protects the freedom of speech. And that view says don’t get into the business of trying to censor some people’s speech in order to give some others people more speech. It’s too risky. And in a campaign, money does – it’s not equal to a speech but it is necessary.

The opposite view says that it is possible in the constitution, to limit the amount of money some people give, so that other people will have an opportunity to speak themselves.

Those two views have always been at war. There is something to be said for both. I favor the second, and that is why I joined a long, long dissent. Trying to explain why they were right. I think the majority is unpopular and wrong. But still, I think it is important for the country to support the institution.


Justice Stephen Breyer in the On Point studio. (Jesse Costa/WBUR)
Justice Stephen Breyer in the On Point studio. (Jesse Costa/WBUR)

From Tom's Reading List

The New York Times "People who hate Citizens United, last year’s blockbuster campaign finance decision by the Supreme Court, tend to blame it for allowing secret money from corporations and unions to flood the political landscape. But the critique is wrong on at least one point — the bit about secrecy. "

Slate "Supreme Court justices live in a no-man's-land between public and private, political and legal. So it's always great fun when they attempt to explain why they don't need to abide by the rules of any of those worlds."

ABC News "That’s what Justice Stephen Breyer told me when I asked if he, like Chief Justice Roberts, is rethinking future attendance at the State of the Union in light of President Obama’s criticism in his 2010 address of one of the court’s rulings."



Day after day I see Americans—of every race, religion, nationality, and point of view—trying to resolve their differences in the courtroom. It has not always been so. In earlier times, both here and abroad, individuals and communities settled their differences not in courtrooms under law but on the streets with violence. We Americans treasure the customs and institutions that have helped us find the better way. And we not only hope but also believe that in the future we will continue to resolve disputes under law, just as surely as we will continue to hold elections for president and Congress. Our beliefs reflect the strength of our Constitution and the institutions it has created.

The Constitution’s form and language have helped it endure. The document is short—seven articles and twenty- seven amendments. It focuses primarily on our government’s structure. Its provisions form a simple coherent whole, permitting readers without technical knowledge to understand the document and the government it creates. And it traces the government’s authority directly to a single source of legitimizing power—“We the People.”

Words on paper, however, no matter how wise, are not sufficient to preserve a nation. Benjamin Franklin made this point when, in 1787, he told a Philadelphia questioner that the Constitutional Convention had created “a republic, Madam, if you can keep it.” The separate institutions that the Constitution fashioned—Congress, the executive, the judiciary—were intended to bring about a form of government that would guarantee that democracy and liberty are not empty promises. But what would enable the Constitution to work not only in theory but also in practice? How could the nation make sure that the Constitution’s limits are respected, that our citizens enjoy its important protections, that our legal system resolves disputes fairly and impartially, and that our courts dispense justice?

Alexander Hamilton, along with many of the other constitutional framers, thought that a Supreme Court would provide part of the
answer. The Court would interpret the law, thereby enforcing the Constitution’s limits. It would help ensure a democratic political system, and it would safeguard individual constitutional rights and liberties. Indeed, as the historian Gordon Wood has pointed out, “by protecting the rights of minorities of all sorts against popular majorities,” the Court would “become a major instrument for both curbing [American] democracy and maintaining it.”

In the framers’ eyes, then, the Court would help to maintain the workable democracy that the Constitution sought to create. I have previously written about the Court and democracy, explaining the ways in which that constitutional concept critically affects judicial interpretation of much of the Constitution’s language and also how the Constitution’s democratic objective assumes a public that actively participates in the nation’s political life. The present book focuses on the Supreme Court’s role in maintaining a workable constitutional system of government. It discusses how the public and the Court can help make the Constitution work well in practice. And it shows why the Constitution necessarily assumes that the typical American learns something of our nation’s history and understands how our government works.

In particular, this book considers two sets of questions. The first concerns the public’s willingness to accept the Court’s decisions as
legitimate. When the Court interprets the law, will the other branches of government follow those interpretations? Will the public do so? Will they implement even those Court decisions that they believe are wrong and that are highly unpopular? Many of us take for granted that the answer to these questions is yes, but this was not always the case. Part I uses examples from our nation’s history to show how, after fragile beginnings, the Court’s authority has grown. It describes how the Court was given the power to interpret the Constitution authoritatively, striking down congressional statutes that it finds in conflict with the Constitution. And it goes on to describe several instances where Supreme Court decisions were ignored or disobeyed, where the president’s or the public’s acceptance of Court decisions was seriously in doubt. These examples of the Court’s infirmity—perhaps startling today—demonstrate that public acceptance is not automatic and cannot be taken for granted. The Court itself must help maintain the public’s trust in the Court, the public’s confidence in the Constitution, and the public’s commitment to the rule of law.

Part II considers how the Court can carry out this constitutional responsibility. The key lies in the Court’s ability to apply the Constitution’s enduring values to changing circumstances. In carrying out this basic interpretive task, the Court must thoughtfully employ a set of traditional legal tools in service of a pragmatic approach to interpreting the law. It must understand that its actions have real-world consequences. And it must recognize and respect the roles of other governmental institutions. By taking account of its own experience and expertise as well as those of other institutions, the Court can help make the law work more effectively and thereby better achieve the Constitution’s basic objective of creating a workable democratic government. My argument in Part II takes the formof examples drawn fromhistory and from the present day, illustrating the Court’s relationships with Congress, the executive branch, the states, other courts, and earlier courts. Part of my aim is to show how the Court can build the necessary productive working relationships with other institutions—without abdicating its own role as constitutional guardian.

The Court’s role in protecting individual liberties presents special challenges to these relationships, some of which are discussed in Part III. I describe how this protection often involves a search for permanent values underlying particular constitutional phrases. I describe a method (proportionality) useful in applying those values to complex contemporary circumstances. And I discuss the Japanese internment during World War II as well as the recent Guantánamo cases to illustrate the difficulty of finding a proper balance between liberty and security when a president acts in time of war or special security need.

Throughout, I argue that the Court should interpret written words, whether in the Constitution or a statute, using traditional legal tools, such as text, history, tradition, precedent, and, particularly, purposes and related consequences, to help make the law effective. In this way, the Court can help maintain the public’s confidence in the legitimacy of its interpretive role.

The various approaches that I discuss in Parts II and III fit together. They constitute a set of pragmatic approaches to interpreting the law. They provide a general perspective of how a pragmatically oriented judge might go about deciding the kinds of cases that make up the work of the Supreme Court. I do not argue that judges should decide all legal cases pragmatically. But I also suggest that by understanding that its actions have real-world consequences and taking those consequences into account, the Court can help make the law work more effectively. It can thereby better achieve the Constitution’s basic objective of creating a workable democratic government. In this way the Court can help maintain the public’s confidence in the legitimacy of its interpretive role. This point, which returns full circle to Part I, is critical. 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. It is what enables the Court to ensure that the Constitution functions democratically, that it protects individual liberty, and that it works in practice for the benefit of all Americans. This book explores ways in which I believe the Court can maintain that confidence and thereby carry out its responsibility to help ensure a Constitution that endures.

From the Hardcover edition.

Excerpted from Making Our Democracy Work by Stephen Breyer Copyright © 2010 by Stephen Breyer. Excerpted by permission of Vintage, a division of Random House, Inc. All rights reserved. No part of this excerpt may be reproduced or reprinted without permission in writing from the publisher.

This program aired on September 21, 2011.


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