Last night, at the LBJ Library in Austin, Texas, I listened to Justice Stephen Breyer discuss his ideas on American Democracy and the Rule of Law. He’s a very good speaker with some very illuminating ideas about the strengths and weaknesses of American Democracy. Among other things, he discussed Hamilton’s reasoning concerning having a Supreme Court in the first place. Apparently, Hamilton didn’t like the Supreme Court solution for the check and balance of Congress and the Executive branch, but it happened to be the best or only one available to the founding fathers. And it took root.
The amazing thing (I paraphrase Justice Breyer) is that we embraced the institution we know as the Supreme Court. It’s appointed, not elected, and it often makes highly unpopular decisions. Outside observers of American Democracy are quick to point out that our Supreme Court is a reflection of our belief in the rule of law, something that continues to be firmly embedded in the American psyche and noticeably absent in other parts of the world.
As I listened to this very practical discussion on the “Rule of Law” and all of its implications, I found myself reaffirming my belief that the Supreme Court is the institution that keeps our Constitution from being nothing more than a quaint document hanging on the wall of our national museum. As well written and broadly applicable as our Constitution is, we would soon step outside the frame of its intent and be lost in a wilderness of well meaning intentions (or perhaps not so well meaning) were it not for the efforts of a few men and women whose goals are to create concise reasons and frameworks for decision making. This does not mean they always come to the most popular conclusions or even, on occasion, the right conclusion as judged in the light of history, but they happen to be pretty good at their job.
I think that Breyer was correct when he said that our democracy will remain healthy as long as we make sure that the 300 million or so of us mostly understand the role that our courts, particularly the Supreme Court, play in our democratic institutions. To that end, we all need to educate ourselves about the one branch of government that remains something of an enigma. I even know a few lawyers who might benefit from remedial studies.