SUPREME COURT - Insider View, Justice Breyer

"Justice Breyer: 'Now, I'm Probably More in Dissent'"
PBS Newshour 10/7/2010


ALSO

"Making Congress All It Can Be" by LINDA GREENHOUSE, New York Times 10/7/2010

Excerpts

The attraction of reading what a sitting Supreme Court justice has to say about interpreting the Constitution is undoubtedly what has turned Justice Stephen G. Breyer’s new book, “Making Our Democracy Work,” into a surprise best seller. Commentators and reviewers have also emphasized the Constitution-related passages in the book, particularly Justice Breyer’s cogent analysis of why “originalism” falls short and why the interpretive goal should be to engage with the framers’ deepest values rather replicate their 18th-century frame of reference. His point, as the book’s title suggests, is for judges to make their way through the mists of history to a Constitution that works today.
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My attention was riveted by another chapter that actually may be the book’s most important contribution to public understanding of the court’s work. This is Justice Breyer’s chapter on statutory interpretation, or to put it more broadly, on what the court’s stance should be toward Congress. The court’s diet of statutory cases may make up the less glamorous half (and it is roughly half) of its docket, but these cases are no less revealing of the soul of the court than the constitutional ones. They are also likely to have a greater impact on people’s daily lives than many of the most highly visible constitutional cases. Chances are that more of us will encounter problems in workplaces governed by anti-discrimination laws and pension regulations than will ever have to deal with the police breaking down the door to conduct a warrantless search.

In Justice Breyer’s view, democracy is best served when the court maintains “a strong workable relationship with Congress,” a partnership in which the court interprets statutes so as to help Congress achieve its legislative goals, unarticulated or even as coyly concealed as those goals may be. Why should that be? Here is Justice Breyer’s explanation:

“The more the court seeks realistically to ascertain the purposes of a statute and interprets its provisions in ways that further those purposes, the harder it will be for the legislator to escape responsibility for the statute’s objectives, and the easier it will be for voters to hold their legislators responsible for their legislative decisions.” By contrast, when the court, deliberately oblivious to context and purpose, simply goes by the statute’s text, however inartful, “the easier it will be for legislators to avoid responsibility for a badly written statute simply by saying that the court reached results they did not favor.”

This is a prescription for tough love from a Supreme Court justice who really does love Congress.