The case for judicial review—the role of courts in enforcing constitutional limits on government power—was memorably made in a 1998 lecture by Aharon Barak, then the president of the Supreme Court of Israel. Before World War II, Justice Barak said, democracies outside of the United States relied for the protection of minorities on the self-restraint of political majorities. But “the twentieth century shattered this approach.” The war and the Holocaust taught the lesson that “it is vital to place formal limits on the power of the majority; that the concept ‘It is not done’ needs to receive the formal expression that ‘It is forbidden.’” Many countries adopted the American model of a written constitution whose rules are enforced by judges.
But why judges? Because, Justice Barak said, the institution chosen to enforce the constitution must be independent, with members professionally trained to interpret laws:
Of course, for the delicate balance to be maintained, the judge must act objectively. He or she must express the basic values of the constitution—not personal values, and not the values of changing majorities.1
By those standards, the Supreme Court of the United States today falls short of justifying its great constitutional function. A headstrong conservative majority is writing personal ideology into law. Freedom of speech is given novel and sweeping sway when the would-be speaker is a corporation2 but is denied when the speaker wants to try to persuade terrorists to give up violence for peaceful politics.3 The Court is so riven by partisanship that justices even pick their law clerks in ways influenced by ideology: one conservative justice, Clarence Thomas, has never chosen a clerk from the chambers of an appeals court judge appointed by a Democratic president.4
In 2000, a 5–4 majority of the Court made George W. Bush president on grounds not found in the Constitution, which commits the resolution of contested presidential elections to Congress. The opinions seeking to justify that result did not remove the aroma of a political decision.
Against that unhappy background Justice Stephen Breyer has done something unusual. He has written a calm, reasoned book about how the Supreme Court should do its work and how, in history, it has sometimes failed the challenge. Fair warning: I am a friend of Justice Breyer. But I think his book is a remarkable contribution to educating the public about our constitutional system and those whose job it is to guard its boundaries.
Justice Breyer begins by discussing what he calls the Supreme Court’s democratic legitimacy. Today it is almost universally assumed that the Court’s decisions, however unpopular, will be accepted by the public and the government and will be obeyed. But that was not always so. Breyer describes meeting the chief justice of an African country who asked him, “Why do Americans do what the courts say?” Breyer answered that there was no secret,
no magic words on paper. Following the law is a matter of custom, of habit, of widely shared understandings as to how those in government and members of the public should, and will, act when faced with a court decision they strongly dislike.
The answer lies not in doctrine but in history.
The first great test of obedience to the rule of law came over the rights of the Cherokee Indian nation in Georgia in the 1830s—and the rule of law lost. White people in Georgia coveted Cherokee lands, and eventually they simply invaded them. The Supreme Court held in Worcester v. Georgia (1832) that the state could not override Cherokee rights established by federal law. But Georgia authorities ignored the decision, and President Andrew Jackson refused to enforce it. He sent troops to Georgia not to protect the Cherokees but to drive them out of the state on what became known as the Trail of Tears to Oklahoma.
Breyer’s discussion of the Cherokees and the law eschews heated rhetoric. But there is a quiet passion in his telling of the sad story. It comes to a moving and unexpected end in a later chapter about the struggle to enforce school desegregation in Little Rock, Arkansas. In 1958 the Supreme Court was asked by Arkansas authorities to let its orders to desegregate schools yield to local opposition. The United States—the Eisenhower administration—told the Court that the “country cannot exist without a recognition that the Supreme Court of the United States, when it speaks on a legal matter, is the law.” Breyer ends this chapter by noting that Central High School in Little Rock is just a mile away from the grave of Quatie Ross, Cherokee Chief John Ross’s wife, who died on the Trail of Tears.
“The grave and the school together tell a story about acceptance of the rule of law in America,” Breyer writes. “The nation had come a long way in the time between the two decisions that they symbolize. It was moving in the right direction.”
But the question of the Court’s democratic legitimacy has never really gone away. It was there in the 1930s, in the great controversy over the Court-packing plan devised by President Roosevelt to prevent the Court from holding New Deal statutes unconstitutional. A survivor of that episode, Justice Robert H. Jackson, wrote in 1954 that such controversy “is likely to break forth from time to time as long as the Republic shall last.” Jackson added, in an almost regretful tone:
Public opinion, however, seems always to sustain the power of the Court…. The people have seemed to feel that the Supreme Court, whatever its defects, is still the most detached, dispassionate, and trustworthy custodian that our system affords for the translation of abstract into concrete constitutional commands.5
It is tempting to think of public resistance to particularly egregious Supreme Court decisions. Suppose, for example, that there had been a popular uprising against Bush v. Gore in 2000—that the recount of votes in Florida had gone forward despite the Court’s decision and that Al Gore had won and become president. The United States would not have invaded Iraq. Lax financial regulation would not have brought us close to an economic meltdown. John Roberts and Samuel Alito would not be on the Supreme Court. The fantasy has its appeal. But the price would have been high: the loss of fealty to the one institution that holds this vast, disparate country together: law.
Breyer writes that he and three other members of the Court thought Bush v. Gore “was very wrong, [and] so did millions of other Americans. For present purposes, however, what is important is what happened next…. The public, Democrats as well as Republicans, followed the decision. They did so peacefully.” It was, he said, “the most remarkable…feature of the case.”
Much of Breyer’s book is devoted to the hard question: How should Supreme Court justices apply the great generalities of the Constitution—“freedom of speech,” “equal protection of the laws”—to concrete contemporary disputes? Does the freedom of speech guaranteed by the First Amendment protect calls for overthrow of the government? Does it forbid legislation limiting campaign spending? Does racial segregation deny equal protection?
Breyer’s approach to these questions begins with the same words used by Justice Barak of Israel in his justification for judicial review: constitutional values. The judge’s task is to apply the values underlying the words used by the framers of constitutional clauses. Thus the equal protection clause of the Fourteenth Amendment was drafted to assure equal treatment of former slaves after the Civil War. At the time there were segregated schools in the District of Columbia; the framers may have thought them consistent with the great purpose of equality. But time proved such an idea false. By 1954, when Brown v. Board of Education was decided, segregation was known to produce not equality but “hopelessly unequal” schools, parks, and other public facilities, Breyer writes. And so the Supreme Court, true to the larger value, held that racial segregation was inconsistent with the Constitution.
The values-based approach to constitutional decisions is contrary to the originalism promoted by Justice Antonin Scalia. The originalist theory is that today’s Supreme Court should look for particular positions taken by the framers of the Constitution: detailed positions, not basic values. A major problem with originalism is that it is so often impossible to know what the framers might have thought about today’s issues. And they wrote a Constitution that by its open language was obviously meant to be adapted to new problems as they arose.
Breyer also makes the point that the public would not likely respect a Constitution whose applications were frozen in eighteenth-century particulars:
What would the public think of an Eighth Amendment (which forbids “cruel and unusual punishments”) that would permit flogging in the navy today on the ground that flogging was common practice on eighteenth-century ships?
Originalism purports to promise certainty. But a board of nine historians would probably disagree as often as nine judges on what particulars the framers might have had in mind. And avowed originalists stray from the theory for various reasons. Who today, for example, would say that the Brown case was wrongly decided because there were segregated schools in the District of Columbia when the Fourteenth Amendment was drafted? To do so would be politically—and morally—unacceptable.
Of course it does not solve all the riddles of constitutional interpretation to say that a judge should attend to the basic values underlying the words he or she is interpreting. Breyer has much more to say about how the judge should proceed—without relying exclusively on rhetoric, for example, and with care for the responsibilities of the other participants in our governmental system. He brings his principles to life by examining some notable cases in the Supreme Court’s history—ones where the Court failed.
Dred Scott v. Sandford (1857), for example. Scott was a slave whose owner took him to a free territory, Wisconsin. In a lawsuit Scott argued that that made him free. The Supreme Court, in an opinion by Chief Justice Roger B. Taney, held that Scott could not bring the suit because he was not a “citizen” as required by the constitutional clause giving federal courts the power to hear suits between citizens of different states. Why wasn’t he? Because, Taney said, the framers considered Africans “so far inferior” to the “white race” that they had no rights “which the white man was bound to respect.” Then Taney went on to say that the federal law that made Wisconsin a free territory, the Missouri Compromise, was unconstitutional because it deprived slaveholders of their property without due process of law.
Taney’s opinion has been thoroughly disavowed—it was overruled by the Fourteenth Amendment, which makes anyone born in the United States a citizen, and was described by Chief Justice Charles Evans Hughes as a “self-inflicted wound” of the Supreme Court. But Breyer’s examination of it is devastating. He says that Taney’s rhetoric was “morally repugnant even then.” The kindest view of it is that Taney had a political objective. He thought that by holding Congress powerless to make new territories free of slavery he could settle the great conflict boiling up between the Southern and Northern states. But if so, he was grotesquely wrong. Dred Scott aroused sentiment for the abolition of slavery, promoted the anti-slavery Republican Party, and helped to bring on the Civil War. “Judges are not necessarily good politicians,” Breyer drily concludes.
One general purpose of the Constitution, Breyer says, is to make the institutions of government accountable. In the light of that proposition he examines the notorious case of the Japanese relocation program in World War II, Korematsu v. United States. On the orders of President Roosevelt in 1942, 112,000 persons of Japanese ancestry—70,000 of them American citizens—were removed from their homes in the western parts of California, Oregon, and Washington and held in desert stockades inland. The order reflected anti-Japanese fervor after Pearl Harbor; even Earl Warren, then the attorney general of California, warned of subversive activities by Japanese-Americans.
Fred Korematsu, one of those removed, challenged the program when convicted of refusing to report for relocation. The Supreme Court rejected his claims by a vote of 6–3. The opinion of the Court was written—astonishingly, as it seems to us now—by Justice Hugo L. Black, the Court’s greatest civil libertarian. The decision came down in December 1944, when it long since had become clear that there was no danger of sabotage by people of Japanese descent on the West Coast. But Justice Black said that in 1942 the “properly constituted military authorities” had found the relocation program urgently necessary. “Congress, reposing its confidence in this time of war in our military leaders—as inevitably it must,” he said, approved the program. And “we cannot—by availing ourselves of the calm perspective of hindsight—now say that, at that time, these actions were unjustified.”
Breyer respects the premise that Roosevelt needed broad authority to run the war. But the Supreme Court’s reasoning effectively removed any restraint, any accountability. It made the sky the limit, Breyer writes:
To its long-lasting shame, the Court upheld exclusion orders based on racial and cultural stereotypes, which removed tens of thousands of American citizens from their homes and interned them in camps. The orders did not come accompanied with any system for individual loyalty screening. Nor could they be justified in terms of military necessity…. Korematsu shows the practical need for the Court to assure constitutional accountability, even of the president and even in time of war or national emergency.
When Breyer speaks of the need to hold presidents accountable even in wartime, readers will think of the contemporary test of that proposition: Guantánamo. President Bush chose to imprison suspected terrorists at the naval base in Cuba because, as he was advised by his lawyers, the prisoners would then be beyond the reach of United States courts. That is, there would be no way to test the legality of their detention: no accountability.
The attempt to keep the detainees outside the law was tested in a series of cases in the Supreme Court. Breyer describes them with formidable clarity. Strikingly, he avoids the strong words that marked the conflict between members of the Court in deciding the cases. Those who want to feel the ferocity of that conflict will have to read their opinions.
The first case was Rasul v. Bush, decided in 2004. Fourteen Guantánamo prisoners challenged their detention by seeking to file applications for writs of habeas corpus, in effect court orders requiring that a prisoner be taken before a court by an official custodian, allowing the court to decide if the custodian has lawful authority to hold the prisoner. The government said the prisoners were enemy combatants in Afghanistan; they said they were humanitarian aid workers. The issue decided by the Supreme Court was whether they came within the language of the federal habeas corpus statute, which allows federal judges to grant the writ “within their respective jurisdictions.”
Was Guantánamo within United States judicial jurisdiction? The base was in a foreign country, but the United States had total control of the territory under a perpetual lease. By a vote of 6–3 the Supreme Court held that for all practical purposes the Guantánamo base was within the United States and subject to the habeas corpus statute. The Court emphasized the crucial role of the writ, historically, in preserving freedom. It quoted Justice Robert H. Jackson in 1953:
Executive imprisonment has been considered oppressive and lawless since John, at Runnymede, pledged that no free man should be imprisoned, dispossessed, outlawed, or exiled save by the judgment of his peers or by the law of the land. The judges of England developed the writ of habeas corpus largely to preserve these immunities from executive restraint.
The next Guantánamo case—Hamdan v. Rumsfeld, decided in 2006—tested an executive order providing that trials of detainees who were prosecuted should be held before special military commissions. Defendants would have fewer rights than apply in courts-martial or civilian courts. Salim Hamdan challenged the commissions as unauthorized by law; a 5–3 decision of the Court sustained his challenge.
As in the Rasul case, the decision left Congress and the President free to propose changes in the governing laws and regulations. President Bush quickly did so, and Congress passed a bill that essentially sought to counter the effects of the Hamdan and Rasul decisions. The new law authorized creation of military commissions and provided that no judge could hear applications for habeas corpus from Guantánamo prisoners.
This, finally, brought the Supreme Court to the ultimate constitutional question. The Constitution provides that Congress may not “suspend” the writ of habeas corpus “unless when in cases of rebellion or invasion the public safety may require it.” In June 2008, in Boumediene v. Bush, the Court held—by a vote of 5–4—that the new law on Guantánamo was a suspension of the writ and violated the Constitution.
The final effect of the Guantánamo cases, Breyer says, is to put up a caution sign for future presidents. Rather than telling presidents that they can do whatever they want in the name of national security, as Korematsu effectively did, the decisions “make clear that a president must take account of the Constitution, as interpreted independently by the Court.”
The way the Court dealt with the Guantánamo problems—slowly, carefully, facing the constitutional question only at the end—helped to make its decisions acceptable. After Boumediene President Bush said, “We’ll abide by the Court’s decision,” adding, “that doesn’t mean I have to agree with it.” It was the opposite course from Andrew Jackson’s.
Breyer is an optimist about public understanding of the Supreme Court’s function. Even though polls show that far fewer Americans recognize Supreme Court justices than they do fictional judges on television, he believes that two hundred years of history have made Americans appreciate the value of following the decisions of an independent court “even when they disagree with a Court decision and even when they may be right and the decisions may be wrong.” But he argues that the Court’s ability to perform its function depends on a deeper public understanding—to which he hopes this book will contribute. He writes:
The public’s acceptance is never a sure thing. It cannot be taken for granted. It must be transmitted through custom and understanding from one generation to the next. At the time of the Guantánamo cases, that hard-won custom of acceptance was strong enough for the Court, at a time of crisis, to exercise its distinctive power of judicial review. The Court could define and enforce constitutional, liberty-protecting limits. And the law held.
I have always wondered how judges on a final appellate court can go on in their jobs if they are consistently outvoted by an intransigent ideological majority. Part of the answer must be that they have faith in the system and regard the role of a constitutional court as so important that it must at all costs be preserved. Obey the decision in Bush v. Gore, and in its turn the Court will be able to hold a president accountable for his treatment of the most despised prisoners.
It is hard to maintain that faith at a time when ultraconservative judges seem determined to write their ideology into law as quickly as possible. Those on the inside, like Stephen Breyer, can only dissent and persist. Those on the outside can only be unremitting in their attention and their criticism.
Aharon Barak, "Democracy in Our Times," remarks delivered at the Hebrew University, Jerusalem, honorary doctorate awards ceremony, June 7, 1998. ↩
See Adam Liptak, "A Sign of the Court's Polarization: Choice of Clerks," The New York Times, September 6, 2010.↩
Robert H. Jackson, The Supreme Court in the American System of Government (Harvard University Press, 1955), p. 23.↩
Aharon Barak, “Democracy in Our Times,” remarks delivered at the Hebrew University, Jerusalem, honorary doctorate awards ceremony, June 7, 1998. ↩
See Adam Liptak, “A Sign of the Court’s Polarization: Choice of Clerks,” The New York Times, September 6, 2010.↩
Robert H. Jackson, The Supreme Court in the American System of Government (Harvard University Press, 1955), p. 23.↩