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Making Congress All It Can Be—A Commentary by Linda Greenhouse ’78 MSL

The following commentary was posted on newyorktimes.com on October 7, 2010.

Making Congress All It Can Be
By Linda Greenhouse ’78 MSL

The attraction of reading what a sitting Supreme Court justice has to say about interpreting the Constitution is undoubtedly what has turned Justice Stephen G. Breyer’s new book, “Making Our Democracy Work,” into a surprise best seller. Commentators and reviewers have also emphasized the Constitution-related passages in the book, particularly Justice Breyer’s cogent analysis of why “originalism” falls short and why the interpretive goal should be to engage with the framers’ deepest values rather replicate their 18th-century frame of reference. His point, as the book’s title suggests, is for judges to make their way through the mists of history to a Constitution that works today.

These portions of the book are illuminating but perhaps just a bit familiar. After all, Justice Breyer and Justice Antonin Scalia, the court’s proud avatar of a non-living Constitution, have been debating their respective visions for years, both before live audiences and on the pages of United States Reports, the official volumes that collect the Supreme Court’s decisions.

My attention was riveted by another chapter that actually may be the book’s most important contribution to public understanding of the court’s work. This is Justice Breyer’s chapter on statutory interpretation, or to put it more broadly, on what the court’s stance should be toward Congress. The court’s diet of statutory cases may make up the less glamorous half (and it is roughly half) of its docket, but these cases are no less revealing of the soul of the court than the constitutional ones. They are also likely to have a greater impact on people’s daily lives than many of the most highly visible constitutional cases. Chances are that more of us will encounter problems in workplaces governed by anti-discrimination laws and pension regulations than will ever have to deal with the police breaking down the door to conduct a warrantless search.

In Justice Breyer’s view, democracy is best served when the court maintains “a strong workable relationship with Congress,” a partnership in which the court interprets statutes so as to help Congress achieve its legislative goals, unarticulated or even as coyly concealed as those goals may be. Why should that be? Here is Justice Breyer’s explanation:

“The more the court seeks realistically to ascertain the purposes of a statute and interprets its provisions in ways that further those purposes, the harder it will be for the legislator to escape responsibility for the statute’s objectives, and the easier it will be for voters to hold their legislators responsible for their legislative decisions.” By contrast, when the court, deliberately oblivious to context and purpose, simply goes by the statute’s text, however inartful, “the easier it will be for legislators to avoid responsibility for a badly written statute simply by saying that the court reached results they did not favor.”

This is a prescription for tough love from a Supreme Court justice who really does love Congress. Stephen Breyer spent what I suspect were the happiest years of his career as chief counsel to the Senate Judiciary Committee, working with its chairman, Senator Edward M. Kennedy, on such initiatives as airline deregulation and sentencing reform. It was a golden era in Congress (what wouldn’t be, compared with today?) when staff members from the youngest to the most senior could sustain a sense of excitement and accomplishment. (If “love” seems a misplaced word in this context, I could settle for “respect”; over the years Justice Breyer has been the member of the court least likely to vote to overturn an act of Congress.)

Indeed, part of the chapter seems written from a Congressional staffer’s point of view. Staff members drafting legislation, he writes, “may well use general or imprecise words” in the bill itself 0n the assumption that the committee reports, hearing records, and members’ floor statements will make the overall purpose clear. But if the court is unwilling to play its part and work with those assumptions, “legislators and their staffs would face a drafting task that is daunting and even impractical,” needing to account in advance for all possible contingencies in a bill that would grow to gargantuan proportions.

Justice Breyer does not mention Justice Scalia by name, either in this chapter or anywhere else in the book. But part of his point is clearly to counter Justice Scalia’s repeated criticism of legislative history as a staff-written fable, an unreliable guide to Congressional intent, even assuming that such a thing as collective intent can be attributed to Congress in the first place. Justice Scalia argues that because material outside the statute’s actual text is inherently subject to manipulation, judges should treat it as irrelevant.

Even if legislators who vote for a bill are acting at cross purposes or for no purpose at all, Justice Breyer maintains, it is still possible for judges to attribute a purpose to Congress, just as the legal system routinely attributes purposes to other collective bodies like “corporations, companies, partnerships, municipalities, states, nations, armies, bar associations.” Even if there is no evidence that Congress considered a statute’s purpose at all, he argues, judges can still ask “what a reasonable member of Congress would have intended,” a thought experiment that “helps judges see the statute as a coherent whole and avoid interpretations that are inconsistent with that more general view.”

Justice Breyer’s view of the relationship between the court and Congress is hardly unique. It is anchored in a rich academic tradition that was centered at Harvard Law School and was in full flower when he was a student there 50 years ago, en route to a Supreme Court clerkship. But I think there is particular value in the exposition he gives it here (along with a number of concrete examples from recent cases) for at least three reasons.

First, in making the academic “legal process” tradition accessible and relevant to a lay readership, the book bolsters the case against Justice Scalia’s destructively dismissive attitude toward the legislative process. Second, because having been both a Congressional staffer and a judge, Justice Breyer knows what he is talking about. And third, because despite a muted tone, the message he imparts is an urgent one. “Most important,” he writes, “by emphasizing purpose the court will help Congress better accomplish its own legislative work.”

In other words, part of the Supreme Court’s job is to help Congress be all that it can be. Who, especially today, could argue with that?