Making our democracy work.

AuthorBreyer, Stephen G.
PositionThe Yale Lectures

This is a time when many Americans distrust our governmental institutions. Perhaps that is a good reason to discuss the institution I know best, the Supreme Court, and to ask why the public trusts that institution. When I first was appointed to the Court, Justice Blackmun, my immediate predecessor, told me about two interesting features of the job. First, he said, you will find this "an unusual assignment." Second, he said, ordinary Americans have "an unquenchable thirst" for knowledge about the Supreme Court. He told me, whenever I have an opportunity to explain to others what I do, particularly those who are not judges or lawyers, to take that opportunity. And that is what I shall try to do in these lectures.

My reason for doing so is Justice Blackmun's reason. Unless the public understands the institution, it is unlikely to support it. And in a democracy public support for any public institution is necessary. Without it the institution may wither, perhaps die. Part of my job, then, is to explain what we do and why it is valuable for ordinary Americans. By doing so, perhaps I can help the public at least put in perspective their questions about the value to our democracy of an independent judiciary.

I have organized my discussion through the use of two questions. The first, which I shall discuss this afternoon, focuses upon judicial review--the fact that the Court has the power to set aside as unconstitutional an act of Congress. Where did it come from? Why does the Court have it? These are very old questions, which have spawned a voluminous literature. But I shall rephrase these questions, emphasizing one aspect of the general problem: Why does the public do what the Court says? How has the Court earned the public's trust?

I hear these latter questions asked frequently by judges from other countries, particularly those from Asia, Africa, and Latin America. What is the secret? they ask. Where does the Court's enforcement authority come from? Why does it work? This afternoon I shall tell you what I tell them. I shall illustrate what I think of as a matter of public trust. Tomorrow afternoon, I shall consider a second matter: what can the Court do to help maintain that public confidence?

  1. MAKING THE CONSTITUTION WORK: A SUPREME COURT JUSTICE'S VIEW

    When I try to answer the foreign judges' questions, I show them the Constitution itself, a brief document phrased in general terms. And I tell them that most who read it will find in it a coherent effort at its heart to create a democracy, a certain kind of democracy. Its seven articles (and a few later amendments) create basically democratic political institutions, so that the people themselves can decide for themselves (through elected representatives) what kind of nation they want, how public policy problems should be solved, and what laws they should enact. At the same time, the Constitution, mostly through amendments, protects basic individual liberties, assures a degree of equality, divides power both vertically (state/federal) and horizontally (legislative/executive/judicial) so that no single group of officials will become too powerful, and guarantees a rule of law. The Constitution sets boundaries within which the institutions of government must act. And the Court's constitutional job is primarily that of a boundary patrol. It typically decides difficult close questions, such as whether, say, abortion, prayer in schools, or assisted suicide falls on one side or another of the boundary lines that the Constitution sets.

    This explanation, however, does not offer the foreign judges much help. They still want to know why Americans follow what the Court says. There is no secret answer, I reply. The answers lie in history, in judicial and public practices, in the development of customs and understandings among the public. And I use several cases to illustrate what I mean.

    1. Marbury

      Who gave the Court the power of judicial review--the power to set aside a federal statute as unconstitutional? The Constitution itself says nothing about it. Yet most of the Framers thought that the Court would possess that power. Alexander Hamilton in Federalist No. 78 best explained why. (1) To paraphrase his thought, I would initially ask you what would happen if no government body had this power. In that case, what would happen to the Constitution, to its guarantees? One might hang the document in a museum, calling it a great work of art, but it would have little practical effect. If someone, or some group, must have the review power, then which person, which group should have it? Hamilton considered lodging the power in the presidency. But he feared the President was so powerful already that to give him the power to validate as constitutional whatever he decided to do would risk tyranny. Next, Hamilton considered lodging the power in Congress. But the members of Congress, as elected officials, know about, and are highly sensitive to, popularity. At the same time, the Constitution gives the same rights to everyone, popular or not. And it is expecting too much to expect Congress, having just enacted a popular law, to turn around and hold that very law unconstitutional--when it is unpopular to do so.

      That leaves the judicial branch. The judges are comparatively nonpolitical. They are, in a sense, technocrats. They lack the power of the purse and the sword. And the review job is primarily a legal one. They have the technical training necessary to perform it well, and they are unlikely to interfere with the other branches too often.

      Perfect. Hamilton thought the judges should have the power of judicial review, and most of the other Founders agreed. But they failed to ask one further question. In Shakespeare's Henry IV, Owen Glendower, a mystical Welshman, announces, "I can call spirits from the vasty deep," to which Hotspur, a practical Englishman, replies, "Why, so can I, or so can any man; But will they come when you do call for them?" (2) If the judicial branch is so weak, why will Americans pay attention when judges hold a statute unconstitutional? Why will Americans do what they say? That is precisely my first organizing question.

      Marbury v. Madison (3) was the first case in which the Supreme Court itself assumed the power of judicial review. And it is a case that raised Hotspur's question. Soon after Thomas Jefferson was elected President in 1800, but before he could be sworn in, President John Adams appointed Marbury to the federal bench, along with many other "midnight judges." In the press of time, however, Adams's Secretary of State (who happened to be John Marshall) failed to deliver to Marbury the presidential commission witnessing his appointment. And when Jefferson took office, he instructed his new Secretary of State, James Madison, not to deliver the commission.

      Marbury thought that he had already been appointed; delivery of the commission was a mere formality, a minor, nondiscretionary act; and he decided to sue Madison to obtain a court order requiring Madison to perform that ministerial act. He noticed that a statute gave the Supreme Court the power to issue "writs of mandamus" in cases "warranted by the principles and usages of law" to "any ... persons holding office, under the authority of the United States." (4) And these words seemed to fit his case like a glove. He consequently brought his case in the Supreme Court; and the Court, in an opinion written by John Marshall (who by then had taken office as Chief Justice), wrote the following.

      First, Madison (and Jefferson) are acting unlawfully in withholding Marbury's commission. The duty to deliver it is like the duty of a record bureau clerk to deliver a marriage certificate after the marriage has taken place.

      Second, the law normally provides a remedy for one injured by an unlawful action. That principle applies here.

      Third, the proper remedy is a writ of mandamus. That writ issues to compel officers to carry out minor, nondiscretionary legal duties, like those at issue here.

      Fourth, we must concede that a statute says that the Supreme Court can hear a case just like this one and issue a writ of mandamus as a remedy.

      But, fifth, Marbury brought his case directly in the Supreme Court (he did not go to a lower court first), and the Constitution says that the Supreme Court has original jurisdiction only over cases in which various foreign officials are parties (e.g., ambassadors) or in which a state is a party. It says nothing about (or which encompasses) issuing writs of mandamus to American cabinet officials. So how are we to reconcile what the statute says with what the Constitution says ?

      Thus Marshall's opinion finally arrives at the great question. What should the Court do when statute and Constitution conflict? The answer, says Marshall, is not so difficult. Out Constitution is written; the people intended it as basic; we must hold that the greater, more basic, written law made by the people trumps the less important statutory law made by Congress. The Constitution must prevail.

      The brilliance of the opinion does not lie simply in its arguments supporting judicial review. Hamilton and the other Founders had long made such arguments. Rather, it also lies in Marshall's ability, like Houdini, to escape from a practical trap--a trap that President Thomas Jefferson was ready to spring.

      Jefferson was not a friend of judicial review, nor of the federal judiciary (populated by Federalists), nor of John Marshall. He wanted to demonstrate the Court's comparative weakness when it tried to set aside a President's determination. He ordered James Madison not even to appear in the Supreme Court. He in effect put Marshall in a dilemma. If the Court holds Madison need not deliver the commission, then the Court has demonstrated it lacks the power to interfere with the executive branch in even the most minor of ways. On the other hand, if the Court holds that Madison must deliver the commission, then Jefferson...

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