Making Our Democracy Work

by Breyer, Stephen

  It takes time and continuous effort to communicate the nature and importance of our government institutions. Support for the judicial institution rests upon teaching in an organized way to generations of students about our history and our government. It grows out of knowledge of our Revolution, our founding documents, the Civil War, and eighty years of legal segregation. It rests upon an understanding of our Constitution, of how government works in practice, and of the importance of the students’ own eventual participation to the Court’s continued effectiveness.

  There is cause for concern about the health of this kind of education. Compared with a generation ago, there seem to be fewer classes in civics and government, fewer town meetings where (in Justice Souter’s words) “my concept of fundamental fairness began to form.” Only twenty-nine states now require the teaching of civics or government as part of their public school curriculum. This decline may help explain the dismal statistics: that a vast majority of eighth graders are not proficient in civics; only one-third of all Americans can name the three branches of government (two-thirds can name a television judge on American Idol); only one-third of eighth graders can describe the historical purpose of the Declaration of Independence; and three-quarters of our population does not understand the difference between a judge and a legislator.

  Still, pessimism is not the complete order of the day. Private citizens, foundations, corporate officials, legislative committees, leaders from across the political spectrum, and retired Supreme Court justices are hard at work developing teaching materials and encouraging the teaching of civics. No one has worked harder than Justice O’Connor to explain to the public the need for civics education, including education about how our judicial institutions work.

  Lawyers, bar associations, and judges can do the same. They can speak to students about the law; they can arrange for visits to the courts; they can help the schools develop teaching materials. Lawyers and judges can meet with local groups and explain what law is, what our legal system is like, what courts do, how the legal system and the courts affect the lives of ordinary citizens. Their presence transmits a simple message: we work with the law and with the Constitution. Our democratic Constitution assumes a public that participates in the government that it creates. It also assumes a public that understands how government works. Without this public understanding, the judiciary cannot independently enforce our Constitution’s liberty-protecting limits.

  The stories this book sets forth are told from the point of view of one judge. I have drawn my own lessons from them. I hope they lead others to study the stories and ponder their lessons about our constitutional history. Then they too will be better able to help make our democracy work. I hope so.

  That is why I have written this book.

  Appendix A

  Images

  THIS BOOK DISCUSSES LEGAL CASES AND PRINCIPLES AT length, but it is important to remember that these cases were decided by, and these principles have a profound effect on, human beings. My hope is that the following paintings and photographs will help the reader to make this connection—to recognize that behind each of the famous cases I have described are real issues that have confronted real people.

  First, I have included a portrait of Chief Justice John Marshall, who did so much to shape our understanding of the Constitution, along with a copy of the order served on James Madison asking him to explain why he never delivered William Marbury his judicial commission. Of course, the controversy over Marbury’s commission led directly to Chief Justice Marshall’s decision in Marbury v. Madison, which established the Court’s authority to engage in judicial review.

  Second is a portrait of Chief John Ross, the Cherokee leader who fought so valiantly for his land, along with a painting of the Cherokee migration along the Trail of Tears, which the tribe traveled to Oklahoma after its eviction from Georgia.

  Third, a well-known portrait of Dred Scott still leads us to think of his fortitude and humanity as he brought about a case the very vices of which helped awaken the nation to the need for slavery’s abolition. And portraits of Chief Justice Roger Taney and Justice Benjamin Curtis represent the opposite sides of a deep division that would split not only the Court in Dred Scott v. Sanford, but also the nation four years later in the Civil War.

  Fourth, two photographs of the Little Rock integration tell us much without words. The first shows the failed efforts of one of the nine students to integrate the school in the face of strong opposition from those in the crowd. The second shows the world that, with the help of the 101st Airborne Division, the rule of law would carry the day. And a picture of the tombstone of Chief Ross’s wife, who died on the Trail of Tears, reminds us that she, a symbol of a president’s denial of the rule of law, lies only a mile from Little Rock High School, the scene of one of the law’s greatest triumphs.

  Fifth, I have included pictures of a sign directing individuals to World War II Japanese internment camps, and of a camp itself, providing a glimpse of the conditions in which these American citizens lived.

  The final is a photograph of Thurgood Marshall and members of the Little Rock Nine sitting on the Supreme Court’s front steps. This image suggests the distance our nation has traveled in making Chief Justice Marshall’s vision of America, as set forth in Marbury, a practical reality.

  This painting, which hangs in the United States Supreme Court, depicts John Marshall, the great chief justice who wrote the Court’s opinion in Marbury v. Madison.

  (Rembrandt Peale, Collection of the Supreme Court of the United States)

  Before deciding Marbury v. Madison, the Court issued this show-cause order, in effect asking Secretary of State James Madison to respond to Marbury’s claim. Madison did not respond.

  (National Archives)

  Chief John Ross led the Cherokee Nation. He strongly opposed Georgia’s efforts to seize the Cherokees’ territory, and he encouraged Supreme Court litigation on the matter.

  (Library of Congress)

  After the ultimate failure of the tribe’s efforts to keep their land, they were forced to immigrate to the West. This painting depicts their involuntary journey along the Trail of Tears.

  (The Granger Collection, New York)

  Dred Scott, who invoked the law in order to escape the bonds of slavery, became the subject of a Supreme Court case, now viewed as one of the Court’s worst decisions.

  (Hulton Archive/Getty Images)

  A native of Maryland and once Andrew Jackson’s attorney general, Roger Taney wrote the Court’s Dred Scott decision.

  (George Peter Alexander Healy, Collection of the Supreme Court of the United States)

  A native of Massachusetts, Justice Benjamin Curtis wrote the principal dissenting opinion in Dred Scott.

  (Gregory Stapko, Collection of the Supreme Court of the United States)

  This famous photograph shows Elizabeth Eckford unsuccessfully attempting to enter Little Rock Central High School.

  (Will Counts Collection: Indiana University Archives)

  Above: Members of the 101st Airborne Division escorting the Little Rock Nine into Central High School.

  (Bettmann/Corbis)

  Right: Quatie Ross, the wife of Chief John Ross, lies buried where she died along the Trail of Tears. The trail symbolizes a defeat for the rule of law, but it is only a mile away from Little Rock Central High School, where, with the help of federal troops, the law won a great victory.

  (Cindy Momchilov)

  A notice ordering persons of Japanese ancestry to report for internment during World War II.

  (Dorothy Lange/Time and Life Pictures/Getty Images)

  This is one of the places to which those of Japanese ancestry had to report.

  (Corbis)

  Before he was appointed a justice of the Supreme Court, Thurgood Marshall argued as a lawyer for the plaintiffs (and won) the case of Brown v. Board of Education. Shown here, he sits on the Court’s front steps with members of the Little Rock Nine.

  (Bettmann/Corbis)<
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  Appendix B

  Background: The Court

  THOSE NOT FAMILIAR WITH THE COURT MAY BE INTERESTED in certain essential background facts about how it functions and about the Constitution itself. The Court’s membership changes slowly over time. The Court’s nine members, each appointed by the president and confirmed by the Senate, serve “during good behavior,” often for life. President Jefferson is remembered to have lamented the fact that Supreme Court judges never retire and they rarely die. In the recent past, the men and women who serve as justices have tended to come from professional judicial backgrounds. In the past, former senators, former governors, former cabinet members, and even a former president have served as justices, but more recently the men and women who serve on the Court have served as judges in lower courts (typically federal courts of appeals), and, like most federal judges, they have begun their judicial careers in midlife after previous legal experience, practicing or teaching law.1

  The Court’s decision-making role is more limited than many imagine. Its work focuses solely upon the interpretation and application of federal law. That law—the federal Constitution, congressional statutes, federal agency action—is itself limited, because the fifty states (each of which has a legislature, governor, and judicial system), not the federal government, are responsible for much of American law, including family law, property law, most tort law, business law, and criminal law. Perhaps 95 percent or more of all judicial proceedings take place in state courts.

  Within the area of federal law itself, the Court hears only a handful of cases, mostly those that require the Court to resolve conflicts of interpretation among different lower courts. To put the caseload in perspective, consider that litigants file around forty-five million cases in all state and federal courts each year. Of these, I would guess that about eighty thousand to a hundred thousand may both raise a question of federal laws and reach the stage where a federal court of appeals or final state court decides that question. In about eight thousand of these cases, the losing litigant will ask the Supreme Court to hear the case. The Court in a year will fully hear and decide about eighty of those cases. Thus, those cases that the Court fully hears amount to a virtually invisible tip of a giant iceberg.2

  These eighty cases, while few in number, are important in kind. Because the Court typically hears cases in which different lower courts have decided the same legal question in opposite ways, the Court’s decision, resolving the conflict, will almost always have considerable legal significance. And, as the Court’s history shows, decisions in some cases—for example, those involving desegregation or electoral reapportionment—have changed the life of our nation. In short, the Court comprises a small number of men and women of diverse views and backgrounds, appointed for life, who decide a small number of cases involving federal law. The Court’s decisions are usually final and frequently have considerable legal and practical impact.

  In reading this book, one needs to understand a few basic features of the Constitution. (I exhort readers who have not done so—and those who have not done so recently—to read the Constitution itself; it is an admirably concise document.) The document, adopted in 1789, almost immediately amended with a Bill of Rights, and subsequently amended a further seventeen times, establishes a federal government. From the time of its adoption, the Constitution with its Bill of Rights provided a framework for democratic government. The framework included an explicit delegation of powers to the federal government (reserving all others to the states); an allocation of governmental powers (among three branches, legislative, executive, and judicial); protections, particularly in the Bill of Rights, of certain individual liberties, including speech, press, religion, freedom from unreasonable searches and seizures, and the payment of compensation for the taking of private property, as well as guarantees of fair procedures for those threatened with criminal prosecution.

  After the Civil War the nation adopted the Thirteenth, Fourteenth, and Fifteenth amendments, which ended slavery, guaranteed constitutional protection of individual liberties from infringement by the states, assured individual citizens fair and equal treatment, and sought to guarantee racial minorities the right to vote. Later amendments, among other things, assured the popular election of senators, extended suffrage to women, forbade the poll tax, and lowered the voting age to eighteen.

  Moreover, Congress cannot set aside a Court interpretation of the Constitution simply by passing an ordinary law. Rather, unless the Court itself modifies or overturns a constitutional decision, that decision can be changed only by amending the Constitution. And the Constitution is difficult to amend, requiring the affirmative vote of two-thirds of each house of Congress plus approval by three-quarters of the states or the calling of a special national convention (which has never been done). In a word: The framework-creating document, namely, the Constitution, is brief, general, practical, and permanent.3

  The Court’s work has four important general features. First, specific, often determinative criteria normally govern the Court’s decision about which cases to hear in full. These basic criteria do not rest upon the intrinsic interest of the legal questions in the case. Nor do they assume that the Supreme Court will reach a “better” decision than did the lower courts. As Justice Robert H. Jackson noted, we are not final because we are infallible; rather, we are infallible only insofar as our word is final.4

  Neither do the criteria require the Court to examine each petition (asking the Court to hear a case) in order to decide whether the lower courts decided the case correctly. Basic fairness does not require such an examination. Each litigant has previously received a trial and taken an appeal. And in any event, a Supreme Court bench of only nine judges could not fully consider and evaluate the soundness of eight thousand lower-court decisions each year.

  As Chief Justice William Howard Taft, a former president of the United States, explained, the basic criterion for hearing a case is the need for federal law to be uniform throughout the nation. If all lower courts have reached similar conclusions about the meaning of a statutory or constitutional phrase, the law is already uniform. And there is normally no need for the Court to hear the case. If, however, the lower courts disagree, with some applying the law one way and others a different way, then there is a need for the Court to hear the case—to achieve national uniformity. We may also grant a petition for hearing if there is some other particular need for a single, authoritative court decision—for example, when a lower court has held a federal statute unconstitutional. But still, disagreement among the lower courts is the most commonly used criterion.5

  Second, in carrying out its responsibilities to interpret statutes and the Constitution, the Court typically must decide how to apply a word or phrase in a document to a particular set of circumstances. To do so, the judges must interpret that word or phrase, that is, explain its meaning. Does the word “costs,” for example, in a statute that awards “costs” to a parent (who successfully shows that a school board must provide a better education to his disabled child) include the expense of hiring an expert witness? Does the Fourth Amendment’s language prohibiting “unreasonable searches and seizures” require police to obtain a search warrant for a car whose driver they have properly arrested and already restrained?6

  Third, when deciding a typical case, each justice will read the same set of ten to fifteen (or more) briefs (legal documents of thirty to fifty pages each containing arguments) filed by the parties and other interested persons. Those persons can include the federal government, state governments, law enforcement officials, businesses, labor unions, environmental associations, public interest associations, and so forth. After reading the set of briefs, the justices will hear an hour-long oral argument, giving them an opportunity to ask the lawyers questions. Within a few days, the justices will discuss the case in a private conference and reach a preliminary decision. The chief justice, if he sides with the majority (or, if he doesn’t, then the most senior justice in the majority), will assign one j
ustice to write a draft opinion (usually fifteen to thirty pages) explaining the Court’s legal conclusion and its reasons. The draft opinion’s author circulates the draft internally; other justices make suggestions; and eventually every justice joins the draft or writes a concurrence (an opinion agreeing in the result but for different or additional reasons) or a dissent or joins a concurrence or a dissent written by another justice. When all have written or joined, the work is done. The opinion upon which at least five members of the Court have agreed is the Court’s majority opinion. (Where a justice is disqualified from hearing a case and the Court then divides 4 to 4, the lower-court decision is automatically affirmed.) All opinions are then released to the public and eventually published. About 30 percent of the decisions are unanimous. About 25 percent are closely divided (5–4). However closely divided and controversial a decision may be, the justices maintain good personal relations with one another.

  Fourth, when considering the Court’s interpretation of the Constitution, one needs to keep in mind that the Constitution sets forth a framework for government. It sets boundaries within which other government bodies must act. The boundaries not only structure government but also set limits upon its authority, explicitly defining, and thereby protecting, individual liberties that government cannot infringe. The Court, in a sense, patrols those boundaries, deciding when an action by a state or federal government falls outside the bounds and lies in forbidden territory. The legal questions about where the boundaries lie may be difficult. When, for example, does a law affecting speech (say, restricting political campaign contributions) fall outside the boundary that the First Amendment puts in place? When does a law prohibiting abortion fall outside the boundary’s limits? Nonetheless, remember that difficult boundary-defining decisions constitute but a tiny part of the vast number of government decisions (embodied in laws, ordinances, rules, and regulations) that determine the kinds of communities, cities, states, and nation that Americans seek to maintain. The Constitution assumes that Americans will make these latter decisions, the vast bulk of government decisions, democratically through the direct or indirect actions of elected officials.