Stepen Breyer, The Authority of the Court and the Peril of Politics, Harvard University Press (2021)

Law Library - New Book Shelf - Call number: KF8742 .B7279 2021

In late September, Justice Breyer was interviewed by Judy Woodruff on the PBS NewsHour.  When asked who this book was for, he replied it was for high school students, undergraduates, law students, anyone interested in knowing how the Court works.

The Court's basic role is as legitimate interpreter of the laws.  This authority depends on the public's trust, and that of the other two branches of government, built on the trust that the Court's judgments are decided on the basis of law, on what the law demands and requires.  To say, the Justices are "politicians in robes" is to miss the point.

Judges use interpretivie tools, such as the text, history, tradition, precedents, purposes or values, and consequences to develop their point of view when crafting decisions.  In so many ways, these are the same tools law students learn and become well acquainted with while in law school and later in practice.  I dare say law students don't waste their time playing politics while pursuing an education in law.

Justice Breyer notes much of what the Court decides is administrative and interpretive in nature, and not political, like whether the President has lawfully imposed a regulation?  Likewise, the Court commonly rests a decision on the interpretation of a statute rather than the Constitution.  In both cases, should the Court decide to overrule, the President or Congress can promulgate a new regulation or statute that conforms with the law.

The Justice offers his counsel to other judges, such as this nugget, we must rely on making decisions that reflect both practical wisdom and justice.  He also offers counsel to the American public with the express aim of strenghtening our governing institutions and bettering our democracy.  He stresses participation in the life of the nation.  The Constitution foresees the public's participation, he says, without it the Constitution and the democratic system of government it created will not work.  Cooperation and compromise are the embodiment of the democratic ideal.

Jusitice Breyer takes an optimistic tone throughout the book, and I'd like to be optimistic right along with him, but he is not without his detractors.  In an recent interview with the Washington Post, he shot back "If that's Pollyanna, I'm Pollyanna" when told that's how some have branded the assertions he makes about the Supreme Court's image in his new book.

We can only wait to see how this story turns out.

Submitted by Eric Taylor, Evening Reference Librarian on October 27, 2021

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