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Packing the court : the rise of judicial…

Packing the court : the rise of judicial power and the coming crisis of… (original 2009; edition 2009)

by James MacGregor Burns

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From renowned political theorist and Pulitzer Prize winner James MacGregor Burns, an illuminating critique of how an unstable, unaccountable, and frequently partisan Supreme Court has come to wield more power than the founding fathers ever intended.
Title:Packing the court : the rise of judicial power and the coming crisis of the Supreme Court
Authors:James MacGregor Burns
Info:New York : The Penguin Press, 2009.
Tags:His-story, Supreme court

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Packing the Court: the Rise of Judicial Power and the Coming Crisis of the Supreme Court by James MacGregor Burns (2009)



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This is an intentionally opinionated history of the Supreme Court of the United States of America.

Burns brings his considerable historical knowledge and literary skill to bear on what has sometimes been the most respected institution in American government, and at other times derided as partisan and backward-looking. As he traces its development from the words in the Constitution and the brilliant, energetic, ambitious, and forward-thinking John Marshall, through to today's Roberts Court, it becomes clear that Burns considers the latter view to be correct for most of the Court's history.

Certain bad Court decisions, such as Dred Scott, are well known, and I have a strong interest in American history. Despite that, I found much of the surprisingly sordid history of Court decisions turning the meaning even of the 14th and 15th Amendments on their heads, inventing a distinction between state and national citizenship, and applying "due process" and other procedural and substantive rights almost entirely to property and the regulation of economic activity, and reducing civil rights of individuals to almost nothing, to be a revelation.

The interplay between politics and the Court, and the persistent conservatism of the Court over decades and generations, even in the face of true national crises like the Great Depression, is disturbing and disheartening. When he reaches the Warren Court, Burns is in some respects downright gleeful, but also aware that it is the flip side of the intransigent Court that opposed Franklin Roosevelt's efforts to create legislation and take action that would alleviate and reverse the Great Depression. In both eras, the personalities and political views of the Justices, rather than the myth of dispassionate, high-minded jurisprudence,

As we proceed forward from the Warren Court to the current Roberts Court, once again a conservative Court with an easy willingness to strike down as "unconstitutional" progressive legislation, Burns begins to lay out the polemical purpose of this book. He argues that the power of the Court to strike down legislation and to be the final arbiter of Constitutionality in all things, is unfounded in the Constitution or any supporting evidence of the intentions of the Founders, and that it has done more harm than good, threatening the foundations of democracy. His proposed solutions will sound radical to many, and certainly don't entirely agree with him myself. Nevertheless, even as a polemicist, Burns remains calm, rational, clear, and thoughtful, and this is an argument well worth reading and considering.


I borrowed this book from the library. ( )
  LisCarey | Jun 9, 2019 |
It was an excellent review about how Congress and particularly the President has tried to influence the US Supreme Court, and not always successfully. Also, it includes some radical suggestions about how the Supreme Court might be reorganized to make it both more independent and less political. Definitely worth reading! ( )
  aevaughn | Aug 19, 2011 |
The upcoming battle on the appointment of a Supreme Court justice should provide opportunity to consider not just of the appointment process but of the very role of the Court itself in a twenty-first century democracy. Most books on the Court through the years have been either weighty tomes fraught with legalese or passionate diatribes without sound historical background. The 2009 book Packing the Court, by historian James MacGregor Burns, Pulitzer Prize and National Book Award winner, is well-researched but a fast, interesting read; it also argues a strong point of view but is definitely not a diatribe. Its epilogue – in effect advice to the new President Barak Obama – is based on the twelve previous chapters of the court’s history from George Washington to George W. Bush.

Specifically, Burns traces the development of the “supremacy” of the Supreme Court – the power it has assumed to veto legislation passed by elected representatives in Congress and signed by an elected President. This power, he insists, was not granted in the US Constitution but improvised by John Marshall and his court in Marbury v. Madison (1803). He discusses in fascinating detail strong courts and weak courts, those dominated by Federalists and Republicans and (rarely) those led by Democrats or liberals; he analyzes decisions which have been gross errors (e.g., Dred Scott, 1857) or bold and wise departures from tradition (e.g., Brown v. Board of Education, 1954, a unanimous decision with a Republican as Chief Justice).

You need to read these chapters before you confront his advice to Obama, but suffice it to say that his recommendation would require bold action by a President who has been “a professor of constitutional law” and “a scholar of the ambiguities and potentialities of that charter.” However, you can hear Burns’ point of view in his ringing prose: “In retrospect, the court has far more often been a tool for reaction, not progress. Whether in the Gilded Age of the late nineteenth century or the Gilded Age at the turn of the twenty-first, the justices have most frequently protected the rights and liberties of the minority of the powerful and the propertied.” (p. 252) ( )
  bfrank | May 27, 2010 |
Packing the Court: The Rise of Judicial Power and the Coming Crisis of the Supreme Court
by James MacGregor Burns, 2009

The confirmation hearings of Sonia Sotomayor raise again the debate about so-called judicial activism and the role of the judiciary, specifically the Supreme Court, in our national and state governments. The Republicans again decried judicial activism, their unstated target decisions such as Roe v. Wade. The Democrats gushed and fawned over Sotomayor, and failed to probe and test her legal reasoning in the same manner they probed Alito and Roberts, thus doing a disservice to Americans.

The hearings make Packing the Court by historian James MacGregor Burns, professor of government at Williams College, especially relevant. Packing the Court is a well-written and fascinating history of Supreme Court politics, and it reminds us that complaints about judicial activism are as old as the constitution. George Washington attempted to pack the Supreme Court with justices sympathetic to his politics. John Marshall was a thorn in Jefferson's side, and Marbury v. Madison made the third president livid, so much so that he ordered his attorneys to give no credence to the decision. Abraham Lincoln battled Justice Roger Taney, who doomed America with the Dred Scott decision. All the while Congress raised and lowered the number of justices, all with the intent of depriving certain presidents the opportunities to appoint justices.

MacGregor shows us that the judicial activism that today’s conservatives decry was very much a creation of the conservatives themselves, originally used to support slavery and later to strike down state regulation of business. After the Civil War, conservative Republican judges eviscerated the 14th Amendment in order to allow southern states to maintain Jim Crow laws, arguing that it was for the states to decide the rights of their citizens. With the Slaughterhouse Cases, conservative justices deflated the privileges and immunities clause of the 14th Amendment, despite the 14th Amendment’s clear intent to create national rather than state citizenship. Conservative justices then argued that sates had no right to regulate commerce, and created a body of law called “economic substantive due process” to strike down state attempts to regulate working conditions, eliminate child labor, and bring relief to farmers and workers suffering under the railroads and corporations during the Gilded Age. The result was Lochner v. New York, a shameful decision in which Justice Rufus Peckham wrote laissez faire economics into the constitution, prompting Oliver Wendall Holmes to lament: “this case is decided upon an economic theory which a large part of the country does not entertain.” (So shameful is the decision that even today when we accuse judges of activism, we accuse them of “Lochnerizing.”)

Lochner became the basis to frustrate national and state attempts to empower unions, to regulate working conditions, and to stabilize the effects of boom and bust economic cycles. Conservative justices thwarted state legislation at every turn, striking down any law that affected progressive reform. Theodore Roosevelt became so enraged at conservative recalcitrance and entrenchment that he made the Supreme Court the focus of his 1904 campaign and called for a national referendum on Supreme Court decisions that offended the American people.

The turning point came as Franklin Roosevelt battled with “the Four Horsemen” of the Court, four conservative justices determined to frustrate Roosevelt’s New Deal. Roosevelt conceived a disastrous plan to increase the court to 12 justices, thus “packing the court.” The plan fell with a dull thud in American politics, but the court saw the handwriting on the wall. In Carolene Products, in the famous footnote 4, the justices signaled that now substantive due process would be applied to civil liberties and to protect fundamental rights, and with West Coast Hotel, the age of Lochner came to an end and the New Deal sailed ahead. Armed with a new substantive due process, the Court now found within the constitution certain rights: the right to privacy and equal protection of the laws, making possible Griswold and Roe, which conservatives now deride and lament.

Burns’ book is accessible to the non-lawyer and avoids minutia. He places major decisions within the context of American history without legal jargon. This is a work of history, an examination of the court’s role in American government not a history of its rulings or ever-changing doctrines. Burns’ thesis is that judicial review is a travesty, a power giving 9 people the final veto and say over the states and Congress, often frustrating the will of the people. No surprise here. My professors in law school decried the same. But judicial review has been engrained in American government for almost 200 years. The Departmentalism in which each branch interprets the constitution for itself Burns advocates may be unworkable, and as past administrations have shown, an invitation for mischief. Nevertheless, Burns gives us an excellent history of the problem of judicial review and it is an invaluable tool for discussing the problem in the public sphere. ( )
1 vote voteunion | Jul 25, 2009 |
Showing 4 of 4
Determining how much power the federal courts should have in our system, and when they should wield it, is one of the most significant issues in American politics. With its partisanship and cartoonish simplifications, Packing the Court does a disservice to this important debate.
Mr. Burns uses his intimate knowledge of America’s past to situate judicial rulings within a political and social context, even as he dissects the practical consequences of particular decisions. In this respect “Packing the Court” serves as a kind of historical bookend to Jeffrey Toobin’s compelling 2007 book, “The Nine,” which focused more on the court’s recent history and personal dynamics within the current court.
The history of the Supreme Court is too important to be monopolized by lawyers. It's a welcome development, therefore, that James MacGregor Burns, one of America's most distinguished historians of presidential power and leadership, has turned his attention to the Court. In many respects, "Packing the Court" is just what you would expect of Burns: a readable and accessible history, full of memorable details about the Byzantine nominations and political peculiarities of famous and obscure justices during the past two centuries. But "Packing the Court" also turns out to be a polemic, although an elegant and interestingly radical one.
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