Friday, June 24

The Protection of Liberty: A Response to Anthony Lewis' Review of a book by Justice Stephen Breyer

Anthony Lewis’ review of Stephen Breyer’s book Making Our Democracy Work: A Judge’s View is a thoughtful insight to the American judicial system, the public’s interaction with it and what sustains the court’s viability even when the ruling by the court is unpopular. Lewis endorses the work of his friend, Justice Breyer, as “a remarkable contribution to educating the public about our constitutional system and those whose job it is to guard its boundaries.” Lewis introduces his review by quoting an inspirational 1998 statement by Justice Aharon Barak of Israel. Barak recalled the lessons of the Holocaust reinforce the necessity of democracies honoring self-restraint of their political majorities in order to protect the minority populations. The process of keeping the majority power in-check requires a system of judges who can make impartial, objective decisions.

Breyer’s discussion of “democratic legitimacy” draws valuable attention to a peculiar and brilliant aspect of American democracy, which is the general public acceptance of Supreme Court decisions and an historical respect for the rule of law. The body of Lewis’ review includes historical examples of important judgments by the Court and the legacy of those decisions on the American perspective. Some of the rulings are acknowledged as timely and righteous and unquestionably loyal to the Constitution, such as school desegregation and the Guantanamo detainees suits. Others are exposed for their constitutional short-comings, as in Dred Scott v. Sandford, the Japanese relocation case of Korematsu v. United States, and the Bush v. Gore

election decision.

Lewis and Breyer ruminate cultural and sociological features of the evolving role of a court system that must adapt to meet the problems of each new generation while adhering to the intent or values of the Constitution. The conclusion of Lewis’ review highlights Breyer’s hope that the function of the Court would be more fully realized as the understanding of the people it serves increases. Breyer cautions that public acceptance is never a “sure thing,” and “can never be taken for granted.” However, Lewis offers his final thoughts with a negative interpretation of what public acceptance means today. He ponders how judges keep their faith in the system when “they are consistently outvoted by an intransigent ideological majority.” Lewis complains “ultraconservative” judges have an agenda counter to their purpose as interpreters and keepers of constitutional law. His final appeal for continued common dissent and criticism by members of the judicial system and the public at large imply a conspiratorial air to the current American political scene.

His abrupt and judgmental conclusion seems inconsistent with the earlier emphasis of “democratic legitimacy.” Additionally, Lewis assigns corruptive forces to the Court’s idealistic function as coming from one source; ultraconservative ideology. He does not define ultraconservatism, but instead implies its detrimental effects as a force that is changing both the American judicial system and the purpose of the American Constitution. Lewis on one hand applauds the equity of majority rule in the country, yet trashes it in the end by dismissing whatever a majority influence is only in as far as that majority is “ultraconservative.” Majority influence many times in American political history came from a liberal persuasion. However, the author ignores this fact and focuses instead on a specific court case from that time period.

Indeed, even when a conservative majority elects a president who may appoint conservative Justices to the Court, or when the Congress is filled with a conservative majority, it’s not reasonable to cry “unfair” as Lewis does in this article except a profound suppression of all other viewpoints actually exists. Unless he is prepared to first dismiss whatever public election was rigged - and prove it was - which elected so-called “ultraconservatives,” and secondly to show evidence a minority liberal influence either on the bench, or in Congress, or on Main Street, U. S. A. is completely impotent and silent, he is without basis for his ominous opinion about the preservation of constitutional law. Breyer’s work reviewed by Lewis sufficiently demonstrates how American society historically has ebbed and flowed interchangeably in a conservative or liberal or moderate direction. The vigor with which public sentiment or outcry effects lasting impact has never been a speedy process. Americans honor the judicial system because it is law and because the law offers them redress on some level even after a final decision is issued.

Curious - how Lewis can be willing to give due attention to the brilliant foresight of Constitutional framers who intentionally designed the document to survive a totally unknown future metamorphosis of the new country barely founded to successfully serve generations of Americans, yet narrow his vision of current rights and liberties to be under assault by one and only one ideological emphasis. For the first time in over a century, America could see three major political parties in the next presidential election contending equally at the polls instead of two. This is only one example to show how consistently the original intention of the framers is alive and well; Americans are flexing their right to an opinion in a free society. True, more people could and should be better informed about the Court’s function. More people should more involved in the PTA or at the local soup kitchen, too. The fact that there are not more citizens engaged in their communities and the political process is also a by-product of the greater good: citizens are free to choose. The ability to engage in open disagreement is an essential part of what grants liberty a healthy and secure place in society. Lewis can’t applaud the intrinsic chorus of different voices in the American public to consistently and by his own admission, remarkably cleave to the rule of law in spite of personal differences and sucker-punch the system as dangerously monotone! The entire article illustrates how the system breathes and thrives with the give and take, the checks and balances, even the growing pains of old standards expiring as new, more constitutionally pure ideals are gradually embraced by the American culture and then the world. Nevertheless, Lewis is unhappy that ideologies different from his own are given any latitude at all.

Lewis’ meticulous review and his complaint, as well as Breyer’s supremely competent expositions and advice, are welcome to enter the arena of vigorous public debate in America ably protected by the genius of a cherished document that appropriately begins, “We the People . . .”.

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