A peek in­side high­est court

Los Angeles Times - - Calendar - Jim Newton

The United States Supreme Court likes its mys­tery: Cases are ar­gued in pub­lic, briefs are avail­able for all to read, but its real work is car­ried out in con­fer­ences at­tended by the nine jus­tices alone. So pri­vate are those de­lib­er­a­tions that in the rare in­stances when they are in­ter­rupted, it is by a knock on the door; the ju­nior jus­tice, by tra­di­tion, an­swers, is passed a note, closes the door, and then delivers the news to the brethren.

It’s thus a bit sur­pris­ing — and re­fresh­ing — to have a sit­ting mem­ber of the court pro­duce a book ex­am­in­ing its work. And yet, Jus­tice Stephen Breyer has writ­ten not one but two il­lu­mi­nat­ing trea­tises that thought­fully place the court in the larger con­text of Amer­i­can democ­racy. His lat­est, “Mak­ing Our Democ­racy Work: A Judge’s View,” ex­tends his pub­lic ru­mi­na­tions with what are be­com­ing his hall­marks: wis­dom, mod­esty, in­ci­sive­ness and a touch of naiveté.

Breyer di­vides his book into three parts: Part 1 re­views the ten­ta­tive devel­op­ment of ju­di­cial re­view, be­gin­ning with John Mar­shall’s ge­nius; the court’s fu­til­ity in pro­tect­ing the Chero­kees; the strug­gle over Brown vs. Board of Ed­u­ca­tion and South­ern re­sis­tance to the de­ci­sion, cul­mi­nat­ing in Pres­i­dent Eisen­hower’s dispatch of the 101st Air­borne to Lit­tle Rock, Ark., to main­tain or­der. Breyer is an en­gag­ing sto­ry­teller, pre­sent­ing those episodes with a light pen, il­lu­mi­nat­ing the con­sti­tu­tional is­sues deftly.

Hav­ing laid his ground­work, Breyer then turns to the meat of his ar­gu­ment. Part 2 looks at the craft of judg­ing, and Part 3 rev­els in the court’s great­est duty, the pro­tec­tion of in­di­vid­ual lib­erty.

Prac­ti­cal and gen­tle, Breyer stands in stark con­trast to his more vol­u­ble coun­ter­part, Jus­tice An­tonin Scalia, who is never named in “Mak­ing Our Democ­racy Work” and yet

whose pres­ence and phi­los­o­phy run through this book. Breyer’s most pointed pas­sages turn on his cut­ting dis­sec­tion of orig­i­nal­ism, the faux-phi­los­o­phy that Scalia af­fects to jus­tify his de­ci­sions.

As Breyer writes: “Orig­i­nal­ists hope that judges will find an­swers to dif­fi­cult con­sti­tu­tional ques­tions by pro­ceed­ing ob­jec­tively, al­most me­chan­i­cally, to ex­am­ine past his­tor­i­cal fact.” Eas­ily said, not so eas­ily done.

To be­gin, there’s the prob­lem of con­text. When the framers banned “cruel and un­usual pun­ish­ment,” they had no in­ten­tion of ban­ning flog­ging, which was prac­ticed in their day. Should the court to­day up­hold flog­ging, or should it pro­hibit it as cruel, un­usual or both? When the au­thors of the 14th Amend­ment wrote that all Amer­i­cans were en­ti­tled to the “equal pro­tec­tion” of Amer­ica’s laws, the same mem­bers of Congress over­saw seg­re­gated schools in the District of Columbia. Was the court thus wrong to rule in 1954 in Brown vs. Board that seg­re­gated schools vi­o­lated equal pro­tec­tion? Orig­i­nal­ism sup­plies un­set­tling an­swers to those ques­tions.

Then there are the prob­lems of moder­nity. The 4th Amend­ment, for in­stance, rec­og­nizes the right of peo­ple to be pro­tected from govern­ment in­tru­sion in their “per­sons, houses, pa­pers and ef­fects.” How about their e-mails? Or their cell­phone calls?

Orig­i­nal­ism is usu­ally of­fered in dis­sent. It did, how­ever, man­i­fest it­self in a re­cent de­ci­sion over the mean­ing of the 2nd Amend­ment. The amend­ment in its en­tirety reads: “A well-reg­u­lated mili­tia, be­ing es­sen­tial to the se­cu­rity of a Free State, the right of the peo­ple to keep and bear Arms, shall not be in­fringed.” Does that sug­gest an un­fet­tered, in­di­vid­ual right? Should the men­tally ill be able to buy arms? Con­victs? And did the Framers en­vi­sion de­vel­op­ments in fire­power? Is it only the right to own a mus­ket that’s pro­tected? How about a bazooka? A ma­chine gun? A nu­clear weapon?

Breyer presents his ma­te­rial deftly, punc­tur­ing Scalia’s phi­los­o­phy with­out ever en­gag­ing Scalia di­rectly. He re­solves it most elo­quently by re­ly­ing on the words of the late Jus­tice Robert Jack­son, an ar­dent ad­vo­cate of ju­di­cial re­straint and the best writer to sit on the Supreme Court. “Just what our fore­fa­thers did en­vi­sion or would have en­vi­sioned had they fore­seen mod­ern con­di­tions,” Jack­son wrote and Breyer re­calls, “must be di­vined from ma­te­ri­als al­most as enig­matic as the dreams Joseph was called upon to in­ter­pret for Pharaoh.”

If Breyer’s anal­y­sis is pen­e­trat­ing, how­ever, his rem­edy is less sat­is­fy­ing. He ar­gues that judges should ex­pand their re­view of cases to in­clude not just text, prece­dent, his­tor­i­cal con­text and tra­di­tions, but also “pur­poses and con­se­quences.” That’s use­ful — un­de­ni­able in one sense — but Breyer’s ef­fort is to fashion a more har­mo­nious govern­ment, one in which the court works in part­ner­ship with the pres­i­dent and Congress in part by en­gag­ing in a good-faith anal­y­sis of what those of­fi­cials’ “pur­pose” was in en­act­ing a law or ex­e­cut­ing an or­der.

It flows from Breyer’s prin­ci­pled sense of duty that he’s in­ter­ested in such a part­ner­ship, but the court does not al­ways func­tion well when it looks to help out. To take just one ex­am­ple that Breyer dis­cusses, Pres­i­dent Franklin D. Roo­sevelt’s “pur­pose” in or­der­ing the in­tern­ment of 110,000 Ja­panese and Ja­panese Amer­i­cans dur­ing World War II was, mis­guid­edly, to pro­tect the nation from their il­lu­sory threat. The court’s shame was that it gave too much def­er­ence to that pur­pose.

That’s a small crit­i­cism and in a way a com­pli­ment, as even Breyer’s blind spots il­lu­mi­nate his char­ac­ter and an­i­mate “Mak­ing Our Democ­racy Work.” Breyer gen­uinely is a gen­tle­man. He imag­ines him­self in an im­por­tant but civ­i­lized ex­change of ideas. “How­ever closely di­vided a con­tro­ver­sial de­ci­sion may be,” he writes, “the jus­tices main­tain good re­la­tions with one an­other.”

That’s frankly hard to be­lieve, and cer­tainly not true his­tor­i­cally.

Jus­tice Felix Frank­furter re­ferred to jus­tices Wil­liam Dou­glas and Hugo Black as “the Axis.” Black and Jack­son loathed each other. When Chief Jus­tice Fred Vin­son died, Frank­furter re­marked that he fi­nally had proof of the ex­is­tence of God. If the court is en­joy­ing an era of good feel­ing, it’s a re­cent one. I sus­pect that it says more about Breyer than the court that he imag­ines such good­will.

Fi­nally, this: Breyer is de­voted to the idea of ed­u­cat­ing the pub­lic about the work of the court and its place in our con­sti­tu­tional scheme. His book ad­vances that pur­pose with ci­vil­ity, but in his life as a jus­tice, as op­posed to his role as an author, he has thwarted an ob­vi­ous op­por­tu­nity to ad­vance that mis­sion. Breyer, so far, has been un­will­ing to sup­port tele­vis­ing the Supreme Court’s pub­lic pro­ceed­ings.

Breyer’s thought­ful book draws read­ers into the court; now he should em­brace a cam­era, so that view­ers might too. Newton is The Times’ edi­tor-at-large and the author of “Jus­tice for All: Earl War­ren and the Nation He Made.” He is at work on a pres­i­den­tial bi­og­ra­phy of Dwight D. Eisen­hower. jim.newton@latimes.com

Allen J. Schaben

JUS­TICE: Stephen Breyer keeps a civil tone.

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