Judicial review—the doctrine that gives the Supreme Court the power to invalidate unconstitutional laws and actions—may seem like a natural, common feature of a system of divided government. It’s anything but, writes Justice Stephen Breyer. Despite widespread distrust of government, Americans accept and respect the dicta of the Supreme Court. Breyer calls this attitude “a treasure.”
Perhaps the most remarkable example of the Court’s standing is Americans’ reaction to the 2000 decision in Bush v. Gore, which stopped a recount of votes that had been ordered in Florida by the state’s supreme court. That decision in effect gave George W. Bush the presidency. Breyer writes, “Despite the strong opposition to the decision, and despite the fact that it might well have been wrong, Americans did not riot in the streets, they did not resort to violence, they reacted peacefully and then followed the Court.” Breyer acknowledges that many may wish that people had protested more, perhaps even violently. To them he responds, “I would ask you to turn on the television and look at what happens in countries that solve their problems through violence. Three hundred million Americans have decided to resolve their differences under law instead—even though courts can decide in ways that are unpopular and even though courts may be wrong when they do so.”
Breyer says that judges from around the world ask him, “What is the secret?” Unfortunately, there isn’t one. What lie behind the authority of the Supreme Court are 200 years of battles over race, slavery, Native Americans, taxation, and other issues. Judicial review was not finally solidified in America through flawless legal reasoning or eloquent judicial opinions, but because in the middle of the 20th century, President Dwight D. Eisenhower was willing to send troops to Little Rock, Arkansas, to enforce the Court’s 1955 order to desegregate the schools, knowing that if he didn’t, “rule of law itself was at stake.”
Just because judicial review today seems enduring, judges should not take it for granted, Breyer warns. In order to preserve this power, judges should follow a judicial philosophy that will “build confidence in the courts” by “bring[ing] about decisions that work better for Americans.” He recommends judicial pragmatism, which is premised on a notion of common values and seeks to make legal interpretations that are purpose based, taking into account how government actually works, not just the words that are on the books.