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Making Our Democracy Work: A Judge's View. By Stephen Breyer. New York: Alfred A. Knopf, 2010. 270 pp. $26.95 cloth.
Over the last several years, scholars of the United States Supreme Court, as well as interested Court watchers, have been entertained by a series of public discussions between Associate Justices Antonin Scalia and Stephen Breyer regarding the nature and process of appellate decision making and the interpretation of the United States Constitution. These friendly debates pit one of the Court's strongest advocates for the use of originalism, Justice Scalia, against Justice Breyer, a vocal supporter of a methodology of interpretation that views the Constitution as a living document with the capacity to adapt to the changing needs of the nation. In Making Our Democracy Work: A Judge's View, Breyer synthesizes many of the ideas expressed during these conversations and his career as a jurist into an explanation regarding how the Court makes the law and the Constitution work for the American people.
For those familiar with Justice Breyer's earlier book, Active Liberty: Interpreting Our Democratic Constitution (2005), the central theme of his current work will be familiar. In Active Liberty, Breyer offered his thesis concerning the proper approach to constitutional interpretation, suggesting that judges rely not only on language, history, tradition, and precedent to decide cases, but also on the purposes of legal text and the consequences of decisions. This approach, he argues, helps to restrain judges while emphasizing the democratic nature of the Constitution and political process. In...