Suggested Discussion Outline

Supreme Court Justice Stephen Breyer's new book (Making Our Democracy Work: A Judge's View) which was selected by last month's meeting attendees -- had been suggested by Denise Chancellor, who handles environmental matters for the Utah Attorney General's Office, and her husband Tom Chancellor who, though retired, headed for many years the Parisian Office of the worldwide American law firm of Gibson Dunn & Crutcher.

As with previous books recommended by the Chancellors, Tom has graciously prepared a Discussion Outline and has graciously agreed to lead the discussion January 12th.
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Suggested Discussion Outline

Post by TheChancellors »

Bcc: Our E-Mail List Of Approx. 150
Sent: Saturday 1/8/2010
Subject: Meeting THIS WEDNESday Evening -- Supreme Court Justice Stephen Breyer's New Book "Making Our Democracy Work: A Judge's View" Which Explains (After Considerable Build Up) The Recent Guantanamo-Bay National-Security Decisions

Attach: RL-w112-DiscussionOutline

Dear Friends,

Our next meeting is THIS WEDNESday January 12th at the Salt Lake Public Library (210 East 400 South) IN CONFERENCE ROOM 3 ON THE LIBRARY'S THIRD FLOOR, accessible by the regular elevators. Please join us for socializing from 6:15 pm > 7:00 pm or, if you prefer, come solely from 7:00 pm > 8:45 pm for our formal discussion.

We will provide our traditional coffee/decaf but, unfortunately, food is not permitted in Conference Room 3 so we will not be able to offer our traditional chocolate chunk cookies - we apologize if you were planning to bring a sandwich/quiche/dessert from the Library Branch of the Salt Lake Roasting Company or to bring your own snack from home.

Our policy has always been that everyone is welcome to attend and participate even if s/he hasn't had time to read the suggested materials.


Supreme Court Justice Stephen Breyer's new book (Making Our Democracy Work: A Judge's View) which was selected by last month's meeting attendees -- had been suggested by Denise Chancellor, who handles environmental matters for the Utah Attorney General's Office, and her husband Tom Chancellor who, though retired, headed for many years the Parisian Office of the worldwide American law firm of Gibson Dunn & Crutcher.

As with previous books recommended by the Chancellors, Tom has graciously prepared a Discussion Outline and has graciously agreed to lead the discussion Wednesday evening. (Your truly will try to remain quiet except when the pot needs stirring.)

Tom's Discussion Outline is attached to this e-mail.

SUPREME COURT FIDDLING WHILE ROME BURNS (OR AMERICA'S APARTHEID "JUSTICE" SYSTEM) = A Case Study For Comparison With SCt Justice Stephen Breyer's New Book "Making Our Democracy Work: A Judge's View" Which Explains (After Considerable Build Up) The Recent Guantanamo-Bay National-Security Decisions

For those of us who are not in the habit of checking our bulletin board =, the two e-mail exchanges appearing below were sparked by last week's Short Quiz Q&A-22 and may be quite eye popping!!!

[If you don't remember Q&A-22, it is posted on the bulletin board.]

[Editorial Note = neither e-mail exchange is reproduced in the posting of this letter here on the bulletin board since both are already posted under Participant Comments –- the exchage with solutions was posted separately while the exchange with Aaron Stander’s was posted as a reply to the “43 Media Stars” topic.]

We hope to see and hear all of you on January 12th!!!

Your friend,

John K.

PS - To un-subscribe, please press "reply" and type "deletion requested."

PPS - Our sister organization, Drinking Liberally, meets on Friday evenings for socializing with like-minded individuals from 6:30 pm > 9:30 pm at Piper Down (1492 South State Street).

Making Our Democracy Work: A Judge’s View
By Supreme Court Justice Stephen Breyer (Hardcover 9/14/2010)
Discussion Outline Prepared By Thomas Chancellor 1/5/2011

I. Why is the U.S. Supreme Court the final authority on what the Constitution means and
whether a law enacted by the Congress is void because it conflicts with the Constitution?

A. There is nothing in the Constitution that gives the Court this authority.

B. Other democratic countries do not give this same authority to their highest court. p 3.

C. The history of the Constitutional Convention suggests that the judiciary would have authority to ignore unconstitutional laws; the Federalist articles argued that the judges must have this authority. Alexander Hamilton, in particular, urged that this power (to declare invalid laws that conflict with the Constitution) was best placed with the judges – not because judges necessarily make better decisions but because lodging the power with either the President or the Congress was more dangerous. pp 6-9. The judiciary, lacking both the “purse” and the “sword,” is the weakest of the three branches and giving it the power to resolve constitutional/ statutory conflicts is the best choice. Liberty requires that the power of judging be separated from the legislative and executive powers.

D. In an early Supreme Court case, Marbury v. Madison (1803), the Supreme Court, speaking through Chief Justice John Marshall asserted the Court’s authority to invalidate laws that conflicted with the Constitution. pp 12-21. Even today, this is the decision cited as establishing the authority of the Court to determine the constitutionality of acts by Congress, the President, and the States.

II. Other branches of government, the States and the public only gradually came to fully
accept the legitimacy of the Court’s Constitutional authority even when they strongly
disagreed with the Court’s views.

A. Examples where the President and/or a States refused to accept the Court’s decision:

A-1. Worcester v. Georgia and the Cherokee Nation located in Georgia: Both President Jackson and the State of Georgia refused to enforce the Court’s decision. Jackson took the position that the President and the Congress had as much authority to decide constitutional issues as the Court and the Court must not be allowed to control the Congress or the Executive. This sad story is set forth at pp. 22-31.

A-2. Ex parte Merryman (1861). During the Civil War, President Lincoln suspended the Constitutional right of habeas corpus. Chief Judge Taney ruled that this violated the Constitution since only Congress had the right to suspend habeas corpus. Lincoln told his generals to ignore the ruling. pp. 172-73.

A-3. Little Rock. Fierce resistance of the Arkansas Governor and the locals to the Federal Court order to integrate Central High (after Brown v. Board of Education). pp. 49-67.

B. Gradually, however, both Presidents, the other institutions of government, and the public came to accept the legitimacy of the Court’s Constitutional decisions even when they strongly disagreed with them. pp. 49-67. A small sample of such decisions includes:

B-1. In 1957, President Eisenhower sent in the 101st Airborne Division to Little Rock to enforce the integration orders of the Federal District Court. That stopped the resistance and got the black students into Central High. The public statement made by Eisenhower at the time is at pp. 58-59.

B-2. In 1950, President Truman, during the Korean War, seized privately-owned steel mills to avert a strike that would have seriously interfered with the war effort. When the Court held the seizure was unconstitutional, Truman accepted the decision and returned the mills to the owners.

B-3. Bush v. Gore (2000). A divided Supreme Court stopped the Florida recount ensuring that Bush would be President. Millions of American strongly objected but Gore, the losing candidate, told his supporters not to attack the legitimacy of the Court’s decision and there was no violence. pp. 68-72.

B-4. The Guantanamo detainee cases during the administration of George W. Bush. In these decisions the Court required the President to take account of the Constitution, as interpreted by the Court, and the President and the public accepted the decisions. pp. 194-214.

B-5. Over the years there are many cases which large segments of the public believed were wrongly decided but, even if there were public protests, there was acceptance and no violence. E.g., banning of school prayer and Roe v. Wade.

III. Making the Constitution Work: How to Interpret the Constitution

A. Originalism. pp.76-79. An originalist judge looks to history to discover what those who wrote the Constitution most likely thought about the scope and content of a constitutional phrase and the judge interprets the phrase accordingly. The hope is to find answers to difficult constitutional questions by proceeding objectively to examine past historical fact. The claim is that the judge is using the framer’s intention and not the judge’s own. See quote from Justice Robert Jackson at pp. 76-77 as to the difficulty of interpreting the views of the Founders. However, even if on accepts originalism, it doesn’t often provide an answer to the kind of cases that come before the Court and frequently there are no historical materials at all on point. Even where there are some historical materials, the historians can disagree how they should be interpreted. See, for example, materials on the meaning of the Second Amendment, pp. 77 and 165-66. Even if we can identify the 18th century practices covered by a constitutional phrase, why would people want to live under the “dead hand” of an 18th century constitution that preserved not the enduring values of a constitutional phrase but only specific illustrations of how those values were then applied?

B. Rather than originalism, should judges follow their own political instincts about what the public will accept and shape the law accordingly? No, this would weaken, not support, constitutional protections for unpopular groups and individuals. The very reason to place the power of constitutional interpretation in the hands of judges is to insulate constitutional decisions from politics. If constitutional interpretation is to be based on political judgements then it should be in the hands of a pro – a politically responsible body. The Dred Scott decision, p 32-48, is considered one of the worst Supreme Court decisions of all time. It may have been an effort by Chief Justice Taney to attempt to resolve the slavery issue which then divided the country. If so, the effort failed totally.

C. If not A or B, then should judges simply use their own subjective personal views of what is best as the law? No. Why would the public, aware of that kind of decision making, accept the views of unelected judges as legitimate? Moreover, such a subjective system could never remain stable over time.

D. If not A, B, or C, then what? Justice Breyer suggests that:

[T]he Court should reject approaches to interpreting the Constitution that consider the documents scope and application as fixed at the moment of framing. Rather, the Court should regard the Constitution as containing unwavering values that must be applied flexibly to ever-changing circumstances. The Court must consider not just how eighteenth-century Americans used a particular phrase but also how the values underlying that phrase apply today to circumstances perhaps then inconceivable. pp.75

In interpreting the provisions of the Bill of Rights, courts regularly confront situations where there are competing interests or rights, either between individuals (e.g., the freedom of the press and the right of a defendant to a fair trial) or between an individual and a governmental interest. How can such competing interests be addressed or balanced? See pp. 159-214.

E. Specific example: How would you decide U.S. Term Limits v. Thornton? See p 85-6

IV. How to Interpret Statutes. pp. 75-156.

In seeking to achieve reasonableness and utility in their interpretations, most judges use textual language, history, context, relevant traditions, precedent, purposes and consequences in their efforts to interpret an ambiguous text. The goal should be to seek an interpretation that works well to achieve the objectives of the provision. While the discussion that follows is in terms of interpreting statutes, it can also have application to constitutional interpretation.

A. Tools of Interpretation:

A-1. The text itself. It is generally agreed that this is where one starts. Indeed, opinions often say that if the text is quite clear, this is where the investigation ends (the “plain meaning rule” in interpretation). However if the meaning of the text as applied to the question presented is not absolutely clear then the judge has to resort to other tools. [There can be disagreement as to whether it is appropriate to use some of the other tools to create the ambiguity. For example, whether precedent can be used to make a provision ambiguous that otherwise seems clear on its face.]

A-2. The next group of tools is history, traditions, and precedent. Judges who say they follow a text-oriented interpretative process often say they try not to use purpose, consequences, or the legislative debates related to the statute’s enactment in Congress. However Justice Breyer does not think that a text-oriented process works well in many cases where the statute is ambiguous. See example discussed, starting at p 89.

A-3. Justice Breyer favors an interpretative approach that relies on the “purpose” of the enactment or provision and the “consequences” that a particular decision will produce. [What Justice Breyer calls “purpose” seems analogous to what others have called the “mischief” which the provision is intended to cure.] For an example of how Justice Breyer would apply the purpose-oriented approach to interpretation, see discussion starting on p 92.

B. The Court should take account of the roles of other governmental institutions and the relationships among them.

B-1. Deference to the comparative expertise of agencies of the executive branch and independent agencies (e.g., SEC, FCC and Federal Reserve). Agencies typically have great power, write regulations, formulate policy and interpret statutes that apply to their authority. pp. 106-20.

B-2. The role of the States in our federal system. The question is often, what is the proper branch or level of government at which a problem should be addressed?

B-2.1 The judicial branch is usually not well equipped to find remedies for economic or social problems.

B-2.2 Legislatures, comparatively speaking, are far better suited to investigating, to uncovering facts, to understanding their relevance, and to finding solutions to economic and social problems.

B-2.3 The Constitution embodies a democratic preference for solutions legislated by those whom the people elect.

Many of these questions are governed constitutionally by the “commerce clause.” If the subject is considered to be covered by the commerce clause, then it is a subject for Congress to address; if not, it is for the States? pp. 121-136.

B-3. Other federal courts: the comparative advantage of specialization. The federal district courts and the courts of appeal are able to do some things better than the Supreme Court. See pp. 137-48.

C. The role of precedent: The legal doctrine, stare decisis, emphasizes the need to “maintain what has been decided.” This is not difficult when the judge believes that an earlier decision is right. But suppose the judge is on the Supreme Court (which has the power to overrule an earlier decision) and s/he believes the earlier decision is wrong. When should stability give way? Justice Breyer lists six factors to help decide that question. See p 151-53.

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