Justice Stephen G. Breyer of the Supreme Court of the United States delivered the 2010 Cecil Sims Lecture at Vanderbilt Law School, which attracted an overflow crowd of students, alumni and faculty to the law school's Flynn Auditorium on November 16. His lecture was based on his most recent book, Making Our Democracy Work: A Judge's View, released in October 2010, in which Breyer employs legal history and theory to provide a tour of early, significant Court decisions. Focusing on the difficulties the Court had in enforcing some early decisions, Breyer shows that the Court did not always command the public acceptance and authority that it enjoys today. He also describes and defends an approach to legal analysis that aims to maintain public acceptance of the Court, even in the face of unpopular decisions. His book suggests, for example, that the Court must interpret the Constitution in a manner that makes it workable for the public rather than attempting to establish and apply an "original" understanding of its meaning. Making Our Democracy Work is a companion to Breyer's 2005 book, Active Liberty: Interpreting Our Democratic Constitution, in which he argues that the judiciary should seek to resolve issues to facilitate popular participation in government decisions.
In his lecture at Vanderbilt, Breyer offered a broad-brush overview of the historical context in which Supreme Court justices have decided cases since the Court's founding in 1789, and discussed how the Court's decisions did not always command immediate public or political acceptance when they were handed down. Breyer noted that some Court decisions now viewed as "good" proved impossible to enforce because the President or the people disagreed with the Court's decision and refused to take the action required to comply with it. An 1831 Supreme Court ruling in favor of the Cherokee Indians did not prevent a local militia from forcing members of the tribe off their North Georgia lands and onto the Trail of Tears after gold was discovered, despite the fact that the Supreme Court had ruled their eviction unconstitutional and upheld a Georgia law prohibiting whites from living on designated Indian territory. At the same time, the Court has handed down decisions that were very "bad" from a legal standpoint, but also extremely popular at the time, such as its decision in Dred Scott, the 1857 ruling that denied the right of citizenship to African Americans. At least one of the justices who supported the majority decision "thought he was preventing the Civil War," Breyer noted, although he emphasized that "judges are not good politicians." The Supreme Court's major purpose, Breyer said, is to function as a "border patrol" to keep legislation passed by Congress from straying outside the legal boundaries established by the Constitution, although he noted that the boundaries have changed considerably since the Court's founding, a trend he views as the key to the Court's ability to maintain the trust of the public. Today, Breyer said, even unpopular decisions are regarded with respect.
While Breyer's lecture was the centerpiece of his visit to Vanderbilt, he also taught a session of the first-year Regulatory State course, teaching students from both Associate Dean Lisa Bressman's and Professor Kevin Stack's sections.
Bressman, who orchestrated Breyer's visit to campus, served as a clerk for Breyer during the 1994-95 term, his first on the Supreme Court. Bressman looks back on that year as a once-in-a-lifetime learning experience. "He was learning about the workings of the Court at the same time we were," she recalled. "It was a unique moment in time to clerk for Justice Breyer." Bressman and Breyer also share a mutual interest in administrative law. Breyer taught administrative law at Harvard Law School full time before his appointment to the First Circuit Court of Appeals in 1980, and continued to teach at Harvard part-time until he joined the Supreme Court.
Bressman has developed her expertise in administrative law over the dozen years she has been teaching the subject at Vanderbilt Law School; during 2008, she taught for a semester at Harvard Law School as the Roscoe Pound Visiting Professor. She credits her early interest to Breyer as well as to renowned administrative law scholar Cass Sunstein, now on the faculty of Harvard Law School and the Administrator of the Office of Information and Regulatory Affairs (OIRA), who was an important mentor at the University of Chicago Law School, where Bressman earned her law degree. She also served for two years in the U.S. Department of Justice's Office of Legal Council in Washington, where she honed her interest in legal regulation, before joining Vanderbilt's law faculty in 1998. In her study of administrative law, Bressman relishes the challenge of "drilling down to the foundation of the subject," she said. "I seek to understand agencies in their practical institutional and political context, and from that vantage point, address theoretical questions about their accountability and rationality."
As the law school's academic dean, one of Bressman's tasks is to bring prominent legal scholars, judges and practitioners to the law school to lecture. However, her primary task is to work with other faculty members to promote and support their scholarship and teaching. In addition, along with Dean Chris Guthrie, she supports faculty recruitment efforts and works with faculty to plan new courses and revise existing courses to incorporate new developments. Bressman, who was Vanderbilt's FedEx Research Professor of Law in 2008-09, published a casebook coauthored with colleagues Edward Rubin and Kevin Stack, The Regulatory State (Aspen, 2010). She regularly publishes articles that Dean Chris Guthrie describes as "polished gems" in such prestigious law journals as the law reviews of Columbia, Duke, Michigan, New York University, Vanderbilt and Yale law schools.
During Breyer's visit to Vanderbilt, Bressman hosted a reception at her home that allowed the Justice to meet informally with Vanderbilt faculty. Sixth Circuit Court of Appeals Senior Judges Gilbert S. Merritt Jr. and Martha Craig Daughtrey and Judge Jane Stranch, who was sworn in November 8, met with Breyer before his lecture. Breyer also met with the seven students in the Vanderbilt Legal Academy Scholars Program, a faculty mentoring program for law students interested in careers teaching law, and signed copies of his book for students and alumni. "He is generous with his time and his intellect beyond all measure," Dean Bressman said. "He is quite simply one of my favorite people."
Bressman was particularly pleased that her students not only had the opportunity to hear Breyer lecture, but also to experience him as a classroom teacher. "When you have the fortune to hear Justice Breyer speak, you instantly appreciate his commitment to the Court and the law," she said. "Everyone who hears him cannot help but think more highly of the Court. Justice Breyer tells us that the Court must seek to make the law work for the people to whom it applies. He is open about the fact that this does not mean the Court will always get it right, as history attests. But his message is that if the Court is focused on this role, then through it all, the Court will remain a highly-regarded institution."Top of page