‘Americans Came To Expect Supreme Court To Work,’ Judge Says
By Norwood Long
Special To The Standard
PLYMOUTH — Do you ever get an urge to say to the person next to you
in a supermarket line, “Wasn’t it great for the rule of law in America
that Eisenhower sent troops to Little Rock in 1957?” Probably not, but
Associate Justice Stephen Breyer of the Supreme Court wishes you did.
Justice Breyer was the guest of honor at the Coolidge Foundation in
Plymouth on Saturday night, July 30, when he gave a talk on his new book,
Making Our Democracy Work: A Judge’s View. According to Steve Woods,
executive director of the Coolidge Foundation, this is the first time a standing
Supreme Court Justice has ever spoken at the Coolidge Foundation. Justice
Breyer was appointed to the court in 1994 by President Bill Clinton. “I’ve
been on the court now for 17 years,” he said, “and I never cease to wonder
at the foresight of the men who wrote the Constitution.” According to Justice
Breyer, by writing the Constitution they not only set down the framework of
our government; they also set in place the safeguard that prevents legislation
from undermining or weakening the Constitution—the Supreme Court.
If it works, it is not because the Court can enforce its own decisions. It can’t.
According to Justice Breyer the Court is like the bombastic Owen Glendower
in Shakespeare’s Henry IV when he says, “I can call the spirits from the vasty
deep.” Hotspur, like a skeptical congress or president, replies, “Why, so can I,
or so can any man; but will they come when you do call them?” If it works,
it is because Americans expect it to work and want it to work, says Justice
Breyer. That wasn’t always true. “Why would you give the job of determining
whether a law is unconstitutional to nine men who aren’t elected? Nine
men who moreover can just plain be wrong? Nine men who have neither the
power of the purse to hire armies, nor
the power of the sword to command
them.” Nine men who may, moreover,
make decisions that are deeply, grievously
unpopular with large segments of
our population, as for instance when the
Court declared that segregated schools
Who else could you give the job to,
asks Justice Breyer? The legislature?
But legislatures are full of people who
do popular things, not unpopular things.
You cannot, says Justice Breyer, play
politics. Judges by and large are lousy
politicians, or if they aren’t, they are
Americans came to expect and want
the Supreme Court to work, says Justice
Breyer only after it made some truly dreadful decisions by playing politics,
such as forcing the Cherokee tribes off their land and re-enslaving freed slave
Dred Scott. That’s why Justice Breyer wants you to talk to the person next to
you in the supermarket line about why you think the rule of law is critical to
America, because, he says, making democracy work is hard work, and you
have to keep at it.
In case we think of the Supreme Court as a polarized, contentious place,
Justice Breyer wants us to believe differently. “In all my 17 years on the Court,
I have never heard a mean or a cross word from my fellow justices. We get on
well together.” “But,” he added, “of course we disagree.” He also had told us,
“If you want to know how a Supreme Court Justice will vote, find out who his
law school professors were 40 years ago.” He said that 40 percent of the Court
decisions are unanimous, and only 18 percent are five to four—and not always
with the same five or the same four.
In introducing Justice Breyer, Coolidge Foundation executive director Steve
Woods got a laugh by claiming that Coolidge and Breyer had a lot in common.
“I agree,” said Breyer, reading from a post card that quoted Coolidge as saying
it is, “…hard work to keep our government working,” a belief he shares. Later
in his speech, Justice Breyer said, “…nothing will take the place of persistence.”
which he said he and Coolidge could also probably agree on.
Nearly 300 people gathered in a tent next to the year-old Calvin Coolidge
Museum and Education Center to hear Justice Breyer on a beautiful evening.
It was an active and engaged audience. Ron Miller, owner of Shiretown
Books, sold all 70 seventy copies of Justice Breyer’s book he had brought
for the occasion and could have sold more. The audience came not only from
neighboring towns but from as far away as Burlington and out of state. Retired
Judge Stephen Schwebel of South Woodstock, who was for 19 years a judge
at the International Court of Justice in the Hague, described Justice Breyer, as
“…probably the outstanding Justice on the Court.” Although many of those
attending were lawyers, neither Justice Breyer’s speech nor his book is aimed
at legal specialists. “After all,” said Justice Breyer, “ 207 million out of the
208 million people in America are not lawyers.” He wants all of us, lay and
learned alike, to take a passionate interest in helping to make our democracy
This article first appeared in the August 4th print edition of the Vermont Standard.