A Review of Justice Breyer’s Book

I thought I would mention Gerald Russello’s review of Justice Stephen Breyer’s book on the Supreme Court and constitutional law, entitled “Making Our Democracy Work: A Judges View.”  Breyer published an earlier book on the same subject some years ago that I reviewed here.

Breyer is an opponent of originalism who defends an activist Supreme Court but claims to be in favor of judicial restraint.  It is maddening.  In the earlier book, Breyer did not say a word about Roe v. Wade or abortion, even though he authored one of the Court’s most aggressive decisions in this area and one might think it was inconsistent with his general approach.  In his most recent book, Russello notes that Breyer again “is silent on how a judge would rule” on that issue.  Here is an excerpt from my prior review:

Breyer’s focus on general purposes allows judges to select the values that the Constitution furthers and his focus on modern real world consequences allows them to assert how laws will in fact operate. With control over the facts and values, Breyer’s “active” judge has virtually boundless authority over the Constitution’s content. Thus, it is no surprise that Breyer’s tour through the Constitution — from affirmative action, to campaign finance, to federalism, to separation of church and state — only reaches destinations that Breyer appears to endorse politically.

Interestingly, Breyer’s tour fails to make one important stop — his majority opinion for the Court in Stenberg v. Carhart, which struck down a ban on partial birth abortions. One might argue that Stenberg is inconsistent with Breyer’s active liberty — purposivist approach, because the opinion protects what seems to be a personal decision unrelated to political participation.

Breyer’s first book was enough for me; I am not going to spend the time reading his second one.  But Russello’s review is well worth reading.

Mike Rappaport

Professor Rappaport is Darling Foundation Professor of Law at the University of San Diego, where he also serves as the Director of the Center for the Study of Constitutional Originalism. Professor Rappaport is the author of numerous law review articles in journals such as the Yale Law Journal, the Virginia Law Review, the Georgetown Law Review, and the University of Pennsylvania Law Review. His book, Originalism and the Good Constitution, which is co-authored with John McGinnis, was published by the Harvard University Press in 2013.  Professor Rappaport is a graduate of the Yale Law School, where he received a JD and a DCL (Law and Political Theory).

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  1. Daniel Artz says

    I bought ( a purchase I much regretted) and made it through Breyer’s “Active Liberty”, and I was thoroughly shocked that someone with such a “flexible” view of the Constitution could make it to the Supreme Court. He reminds me much too much of Lewis Carol’s Humpty Dumpty — “the Constitution means just what I want it to mean, neither more nor less.”. If I am going to read another book by a Supreme Court Justice, it certainly won’t be one written by the clear intellectual lightweight on the Court.

    • says

      I, for one, am encouraged by this SCOTUS disiceon. I hope that Arizona IMMEDIATELY begins enforcement.In the meantime I have grave reservations about E-Verify.E-Verify is nothing more than an excuse for the government to collect information on ALL citizens under a pretext!For example, the E-Verify website states “An employee must provide certain information on the form, such as name and date of birth, as well as present supporting documents.”Notice anything MISSING in this statement?You’re correct, the SSN is not mentioned.BUT, in the actual I-9 Form that is MANDATORY the government matches your Name, Address, & DOB to your SSN and that all goes into the government’s centralized Homeland Security database.See: .Do you feel safer from all those invading hordes yet?The single biggest threat to our way of life is the way those in government run things!

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