"Active Liberty" and Judicial Power: What Should Courts Do to Promote Democracy?

Article excerpt

"ACTIVE LIBERTY" AND JUDICIAL POWER: WHAT SHOULD COURTS DO TO PROMOTE DEMOCRACY? ACTIVE LIBERTY: INTERPRETING OUR DEMOCRATIC CONSTITUTION by Stephen Breyer (Alfred A. Knopf, New York 2005).

INTRODUCTION.................... 1827

I. ACTIVE LIBERTY AND JUDICIAL REVIEW.................... 1830

II. PROMOTING DEMOCRACY: WHAT CAN JUDGES DO?.................... 1833

A. Active Liberty and the Limits of Judicial Competence.................... 1833

B. Representation-Reinforcement and Limits on Federal Government Power.................... 1844

III. JUSTICE BREYER'S CRITIQUE OF ORIGINALISM.................... 1850

A. Conflating Originalism and Textualism.................... 1851

B. Conflating Original Meaning and Original Intent.................... 1853

C. Originalism, Supermajoritarianism, and Democracy.................... 1855

D. Originalism, Consequentialism, and Comparative Advantage.................... 1858

CONCLUSION.................... 1861

INTRODUCTION

Justice Stephen Breyer's book, Active Liberty: Interpreting Our Democratic Constitution, is an important contribution to the longstanding debate over the relationship between democracy and judicial review. Justice Breyer argues that judicial power should be used to facilitate citizen engagement in the democratic process rather than undermine it. While such "representation-reinforcement" defenses of judicial review are not new,1 Justice Breyer's book provides an interesting version of the theory, as well as applications to particular areas of constitutional law. Moreover, the book is significant because it is the first work on the subject published by a sitting Supreme Court justice.

Justice Breyer contends that the promotion of democracy justifies important recent Supreme Court decisions in the fields of affirmative action,2 the right to privacy,3 and free speech,4 among others. He further argues that his consequentialist approach to constitutional interpretation is superior to both textualism and originalism and better able to promote democracy.5

Obviously, Justice Breyer's status contributes to his work's significance. Perhaps the leading liberal jurist on the Supreme Court, Justice Breyer is a distinguished former Harvard Law School professor and author of important works on regulation and administrative law.6 His argument that judicial power can and should be used to promote democracy comes at a time when many scholars on both the right7 and the left8 have reinvigorated the old claim that judicial power undermines democratic self-government. Such claims have been made not only in the United States but also in many other democracies that have adopted judicial review.9 It is, therefore, not surprising that Active Liberty has already been reviewed by a variety of prominent legal scholars and political commentators, including Sanford Levinson,10 Jeffrey Rosen," Kathleen Sullivan,12 Cass Sunstein,13 Jeffrey Toobin,14 Mark Tushnet,15 and George Will.16 Numerous other writers, both conservative and liberal, have also joined the debate sparked by the book.17

This Review focuses on Justice Breyer's vision of the relationship between democracy and judicial power. Justice Breyer's contribution to the debate is important and occasionally convincing, particularly in his critique of some forms of originalism. However, the Justice is far less persuasive in defending his own approach to the connection between democracy and judicial review. Unfortunately, that relationship is considerably more complex than Active Liberty lets on. In some instances, a more nuanced understanding of it tends to undermine Justice Breyer's conclusions.

Part I briefly summarizes the main arguments of Active Liberty, paying special attention to Justice Breyer's theory of the relationship between democracy and judicial power. Part II identifies some key shortcomings of Justice Breyer's approach to democracy and the judiciary. …

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