Evolving Circumstances, Enduring Values

by Jeff Shesol

New York Times
September 17, 2010

“If my fellow citizens want to go to hell,” Justice Oliver Wendell Holmes once wrote, “I will help them. It’s my job.” This, for much of the last century, has stood as the purest (or at least the most pungent) distillation of “judicial restraint” — the idea that judges should, for better or worse, leave the business of governing to the people’s duly elected representatives. As practiced by the jaundiced Holmes, restraint was often a shrug of the shoulders: lawmakers, in his view, were predisposed to foolishness, and the Constitution entitled them, in most cases, to be fools.

Justice Stephen Breyer, appointed to the Supreme Court by President Clinton in 1994, is also a believer in restraint. Statistics reveal that over the years, Breyer has been less willing than any of his fellow justices to overturn acts of Congress (a fact that belies the notion, peddled by conservative pundits, of liberal judges as legislators in robes, ruling the country by judicial whim). Yet Breyer, unlike ­Holmes, is optimistic about the outcome. He may, in fact, be the only American who still believes that members of Congress, as he has said, “really are mostly trying to do the right thing” — a faith he attributes to his years as a Congressional staff member.

That spirit pervades Breyer’s provocative new book, Making Our Democracy Work, which portrays judges not as aloof, indifferent observers of the American experiment, but as essential partners in that project. They fulfill that role, Breyer argues, by building “productive working relationships with other institutions” — Congress, the White House, states, independent agencies, school boards, lower courts and the like. He acknowledges a tension, but no contradiction, between helping these institutions operate more effectively and curbing their constitutional excesses.

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