How the Supreme Court Should and Should Not Work

Darryl Heikes/Polaris
Stephen Breyer shortly after his nomination to the Supreme Court, May 16, 1994

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…

This is exclusive content for subscribers only.
Get unlimited access to The New York Review for just $1 an issue!

View Offer

Continue reading this article, and thousands more from our archive, for the low introductory rate of just $1 an issue. Choose a Print, Digital, or All Access subscription.

If you are already a subscriber, please be sure you are logged in to your account.