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The Supreme Court is one of the most extraordinary institutions in our system of government. Charged with the responsibility of interpreting the Constitution, the nine unelected justices of the Court have the awesome power to strike down laws enacted by our elected representatives. Why does the public accept the Court’s decisions as legitimate and follow them, even when those decisions are highly unpopular? What must the Court do to maintain the public’s faith? How can the Court help make our democracy work? These are the questions that Justice Stephen Breyer tackles in this groundbreaking book.

Today we assume that when the Court rules, the public will obey. But Breyer declares that we cannot take the public’s confidence in the Court for granted. He reminds us that at various moments in our history, the Court’s decisions were disobeyed or ignored. And through investigations of past cases, concerning the Cherokee Indians, slavery, and Brown v. Board of Education, he brilliantly captures the steps—and the missteps—the Court took on the road to establishing its legitimacy as the guardian of the Constitution.

Justice Breyer discusses what the Court must do going forward to maintain that public confidence and argues for interpreting the Constitution in a way that works in practice. He forcefully rejects competing approaches that look exclusively to the Constitution’s text or to the eighteenth-century views of the framers. Instead, he advocates a pragmatic approach that applies unchanging constitutional values to ever-changing circumstances—an approach that will best demonstrate to the public that the Constitution continues to serve us well. The Court, he believes, must also respect the roles that other actors—such as the president, Congress, administrative agencies, and the states—play in our democracy, and he emphasizes the Court’s obligation to build cooperative relationships with them.

Finally, Justice Breyer examines the Court’s recent decisions concerning the detainees held at Guantánamo Bay, contrasting these decisions with rulings concerning the internment of Japanese-Americans during World War II. He uses these cases to show how the Court can promote workable government by respecting the roles of other constitutional actors without compromising constitutional principles.

Making Our Democracy Work is a tour de force of history and philosophy, offering an original approach to interpreting the Constitution that judges, lawyers, and scholars will look to for many years to come. And it further establishes Justice Breyer as one of the Court’s greatest intellectuals and a leading legal voice of our time.

part i / The People’s Trust

One Judicial Review: The Democratic Anomaly 3

Two Establishing Judicial Review: Marbury v. Madison 12

Three The Cherokees 22

Four Dred Scott 32

Five Little Rock 49

Six A Present-Example 68

ii / Decisions That Work 73

Seven Basic Approach 75

Eight Congress, Statutes, and Purposes 88

Nine The Executive Branch,Administrative Action,and Comparative Expertise 106

Ten The States and Federalism: Decentralization and Subsidiarity 121

Eleven Other Federal Courts: Specialization 137

Twelve Past Court Decisions: Stability 149

part iii / Protecting Individuals 157

Thirteen Individual Liberty: Permanent Values and Proportionality 159

Fourteen The President, National Security, and Accountability:

Korematsu 172

Fifteen Presidential Power: Guantánamo and Accountability 194

Conclusion Appendix A Images 221

Appendix B Background: The Court 228

Acknowledgments 233

Notes 235

Index 255

Contents

Stephen Gerald Breyer (pronounced /ˈbraɪər/; born August 15, 1938) is an Associate Justice of the U.S. Supreme Court. Appointed by Democratic President Bill Clinton in 1994, and known for his pragmatic approach to constitutional law, Breyer is generally associated with the more liberal side of the Court.[1]

Following a clerkship with Supreme Court Associate Justice Arthur Goldberg in 1964, Breyer became well-known as a law professor and lecturer at Harvard Law School starting in 1967. There he specialized in the area of administrative law, writing a number of influential text books that remain in use today. He held other prominent positions before being nominated for the Supreme Court, including special assistant to the United States Assistant Attorney General for Antitrust, and assistant special prosecutor on the Watergate Special Prosecution Force in 1973.

In his 2005 book Active Liberty, Breyer made his first attempt to systematically lay out his views on legal theory, arguing that the judiciary should seek to resolve issues to encourage popular participation in governmental decisions.

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要充分重视判决的说理。法官撰写判决时，即使是在各方瞩目、民意沸腾的政治性案件中，判决的说理——不仅仅是裁判结果——也常常会起到扭转乾坤的作用。一份坚实有力的判决，除了要立场坚定、说理充分、透彻清晰、论据翔实，还应具有说服力，能给读者留下深刻、持久的印象，（哪怕是一份异议意见）最终可以推动实现预期的法律效果。

当人们政治热情高涨时，很少有人会理性地接受一个专业性选择。当民意沸腾时，一个缺乏“钱袋子”和“抢杠子”的专业部门，也很难抚平众人情绪。

约翰·亚当斯任总统期间，为对付共和党人和“不听话”的新闻界，曾推动国会出台《防治煽动法》（The Sedition Law），规定“撰写、印刷、发表或出版……任何针对联邦政府、国会……或者总统的不实、诽谤、和污蔑之词，意图损害政府、国会、总统声誉，煽动良民仇视、对抗政府者"，最高将判处两年徒刑，并处两千美元罚金。受该法影响，许多报社编辑和异议人士社捕入狱。包括最高法院大法官蔡斯、帕特森在内的许多法官在巡回听审时，参与了这类案件的审理，并作出了有罪判决。1800 年大街期间，因为这部法律激起众怒，导致亚当斯败于杰弗逊之手，并使联邦党人失去了对国会的控制权。杰弗逊上任后，赦免了所有因《防治煽动法》入狱的人。

首席政府律师告诉最高法院，如果连你们都“屈服于权力和暴力”，就意味着“放弃了法律和秩序”。“他说：“如果人们连最高法院都不重视，这个国家将荡然无存，最高法院在法律事务上说的每一句话，都相当于法律。”

司法独立是一个国家的基本理念。但是，当苏共一名党委书记打电话给法官，告诉他某个案子该如何判时，司法独立将荡然无存

但我建议法官在下判前，应洞悉决策在现实世界中可能导致的后果，并充分予以考虑

书籍介绍

The Supreme Court is one of the most extraordinary institutions in our system of government. Charged with the responsibility of interpreting the Constitution, the nine unelected justices of the Court have the awesome power to strike down laws enacted by our elected representatives. Why does the public accept the Court’s decisions as legitimate and follow them, even when those decisions are highly unpopular? What must the Court do to maintain the public’s faith? How can the Court help make our democracy work? These are the questions that Justice Stephen Breyer tackles in this groundbreaking book.

Today we assume that when the Court rules, the public will obey. But Breyer declares that we cannot take the public’s confidence in the Court for granted. He reminds us that at various moments in our history, the Court’s decisions were disobeyed or ignored. And through investigations of past cases, concerning the Cherokee Indians, slavery, and Brown v. Board of Education, he brilliantly captures the steps—and the missteps—the Court took on the road to establishing its legitimacy as the guardian of the Constitution.

Justice Breyer discusses what the Court must do going forward to maintain that public confidence and argues for interpreting the Constitution in a way that works in practice. He forcefully rejects competing approaches that look exclusively to the Constitution’s text or to the eighteenth-century views of the framers. Instead, he advocates a pragmatic approach that applies unchanging constitutional values to ever-changing circumstances—an approach that will best demonstrate to the public that the Constitution continues to serve us well. The Court, he believes, must also respect the roles that other actors—such as the president, Congress, administrative agencies, and the states—play in our democracy, and he emphasizes the Court’s obligation to build cooperative relationships with them.

Finally, Justice Breyer examines the Court’s recent decisions concerning the detainees held at Guantánamo Bay, contrasting these decisions with rulings concerning the internment of Japanese-Americans during World War II. He uses these cases to show how the Court can promote workable government by respecting the roles of other constitutional actors without compromising constitutional principles.

Making Our Democracy Work is a tour de force of history and philosophy, offering an original approach to interpreting the Constitution that judges, lawyers, and scholars will look to for many years to come. And it further establishes Justice Breyer as one of the Court’s greatest intellectuals and a leading legal voice of our time.