In a provocative and brilliant analysis, retired Supreme Court Justice Stephen Breyer deconstructs the textualist philosophy of the current Supreme Court’s supermajority and makes the case for a more pragmatic approach of the Constitution.

The relatively new judicial philosophy of textualism dominates the Supreme Court. Textualists claim that the right way to interpret the Constitution and statutes is to read the text carefully and examine the language as it was understood at the time the documents were written.

This, however, is not Justice Breyer’s philosophy nor has it been the traditional way to interpret the Constitution since the time of Chief Justice John Marshall. Justice Breyer recalls Marshall’s exhortation that the Constitution must be a workable set of principles to be interpreted by subsequent generations.

Most important in interpreting law, says Breyer, is to understand the statutes as well as the consequences of deciding a case one way or another. He illustrates these principles by examining some of the most important cases in the nation’s history, among them the Dobbs and Bruen decisions from 2022 that he argues were wrongly decided and have led to harmful results.

"The occasional flashes of insight and the unique perspectives of the participants make this book invaluable for students doing research on the judicial process."--"CHOICE"

"Fascinating, spirited, and unique. This unusual book offers fresh illumination about what judges do and why they do it."
--Cass R. Sunstein, University of Chicago

"The format suggests that one has been invited into a special, high-level conversation where we can glimpse the uncensored converstation of thoughtful and seasoned jurists."--"The Law and Politics Book Review"

Law, politics, and society in the modern West have been marked by the increasing power of the judge: the development of constitutional justice, the evolution of international judiciaries, and judicial systems that extend even further into social life. Judges make decisions that not only enforce the law, but also codify the values of our times.

In the summer of 2000, an esteemed group of judges and legal scholars met in Provence, France, to consider the role of the judge in modern society. They included Robert Badinter, former president of the Constitutional Council in France; Stephen Breyer, Justice of the Supreme Court of the United States; Antonio Cassese, the first president of the International Criminal Tribunal for the former Yugoslavia; Dieter Grimm, former vice president of the Constitutional Court of Germany; Gil Carlos Rodriguez, president of the Court of Justice of the European Union; and Ronald Dworkin, formerly of Oxford University, now professor of philosophy and law at the New York University Law School. What followed was an animated discussion ranging from the influence of the media on the judiciary to the development ofan international criminal law to the judge's consideration of the judge's own role. Judges in Contemporary Democracy offers a rare and intimate glimpse into the powers and the role of judges in today's society.

What role should courts play in a modern democracy? How should fundamental provisions of a democratic constitution be interpreted? These questions have divided constitutional theorists and those responsible for interpreting and applying constitutional law including, notoriously, the current U.S. Supreme Court. Justice Breyer is the most prominent liberal voice in the Supreme Court, this book distils his experience of interpreting the U.S. constitution and outlines a general liberal theory of the role of constitutional courts. Breyer argues that the primary role of a democratic constitution is to preserve and encourage 'Active Liberty': citizen participation in shaping government and its laws. The book argues that promoting active liberty requires judicial modesty and deference to legislative bodies; it also requires the recognition of the changing needs and demands of the populace. Breyer makes a powerful case against treating constitutions as a static guide for a world that has passed into history. Throughout the book, active liberty is employed as a foundational concept to illuminate the interpretation of key constitutional questions, and recent Supreme Court controversies, such as the scope of free speech and racial equality protection. For this revised, international edition of the book, Justice Breyer extends his discussion of democratic theory to examine topical questions in European constitutional law, including the legitimacy of the European Union, religious freedom under the European Convention on Human Rights.

A decision the Court and the Nation will come to regret."" Ten years ago, the United States Supreme Court struck down two local school board initiatives meant to reverse extreme racial segregation in public schools. The sharply divided 5-4 decision in Parents Involved in Community Schools v. Seattle School District marked the end of an era of efforts by local authorities to fulfill the promise of racially integrated education envisioned by the Supreme Court in 1954 in Brown v. Board of Education. In a searing landmark dissent, Justice Stephen Breyer warned this was ""a decision the Court and the Nation will come to regret."" A decade later, the unabated resegregation of America's schools continues to confirm Justice Breyer's fears, as many schools and school districts across the country are more racially segregated today than they were in the late 1960s. Edited and introduced by Justice Breyer's former law clerk--and accompanied by a sobering update on the state of segregated schools in America today--this volume contains the full text of Justice Breyer's most impassioned opinion, a dissent that Justice John Paul Stevens called at the time ""eloquent and unanswerable."" The cautionary words of Justice Breyer should echo in classrooms across the country and in the hearts and minds of parents and schoolchildren everywhere.

The American Supreme Court is one of the most powerful and controversial judicial bodies in the world. The Court has assumed the role of settling fundamental issues of American social policy through its power of constitutional interpretation, and its rulings are among the most divisive, and controversial events in American political life. How did the American court come to acquire such power? How does it maintain its authority and public confidence in the face of deep political divides. In this book Stephen Breyer, a leading intellect in the current Court, gives an insider's view on how America's Supreme Court came to acquire such a prominent role in American public life, how the Court operates, and how it can continue to maintain the trust of the American public as the final arbiter of the values underlying America's democratic constitution. Breyer introduces the history of the Court by telling the stories of the landmark cases that defined the role the Court would play in American politics. He then offers a powerful restatement of his views on how a constitutional court should fulfil its function as final interpreter of a democratic constitution. In doing so, he examines some of the Court's most controversial recent decisions, on issues such as the legality of detention in Guantanamo Bay, and the scope of protection of gun ownership in Heller. The book offers a unique introduction to how the American Supreme Court does and should operate, invaluable to all students of American law and politics, and anyone looking to understand the workings of American politics.

Breaking the Vicious Circle is a tour de force that should be read by everyone who is interested in improving our regulatory processes. Written by a highly respected federal judge, who would go on to serve on the Supreme Court, and who obviously recognizes the necessity of regulation but perceives its failures and weaknesses as well, it pinpoints the most serious problems and offers a creative solution that would for the first time bring rationality to bear on the vital issue of priorities in our era of limited resources.

This book will become the bible of regulatory reform. No broad, authoritative treatment of the subject has been available for many years except for Alfred Kahn's "Economics of Regulation" (197O). And Stephen Breyer's book is not merely a utilitarian analysis or a legal discussion of procedures; it employs the widest possible perspective to survey the full implications of government regulation economic, legal, administrative, political while addressing the complex problems of administering regulatory agencies.

Only a scholar with Judge Breyer's practical experience as chief counsel to the Senate Judiciary Committee could have accomplished this task. He develops an ingenious original system for classifying regulatory activities according to the kinds of problems that have called for, or have seemed to call for, regulation; he then examines how well or poorly various regulatory regimes remedy these market defects. This enables him to organize an enormous amount of material in a coherent way, and to make significant and useful generalizations about real-world problems.

Among the regulatory areas he considers are health and safety; environmental pollution, trucking, airlines, natural gas, public utilities, and telecommunications. He further gives attention to related topics such as cost-of-service ratemaking, safety standards, antitrust, and property rights. Clearly this is a book whose time is here a veritable how-to-do-it book for administration deregulators, legislators, and the judiciary; and because it is comprehensive and superbly organized, with a wealth of highly detailed examples, it is practical for use in law schools and in courses on economics and political science.