James MacGregor Burns (1918–2014)

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 show more 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.

Recommended.

I borrowed this book from the library. show less

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 show more 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.

Recommended.

I borrowed this book from the library. show less

This was a much easier (and, for me, more interesting read) than the first in the series. I find it hard to identify with the founding fathers (what with me being a lowly woman and all), but bring on the stories from the Civil War through the Depression and I'm hooked. For some reason, the story of how Henry Ford treated his employees from other countries (spoiler: he treated them appallingly) will probably be the one thing I will remember from this book 20 years from now. Also, I found show more myself intrigued by the story of Woodrow Wilson and the League of Nations. Interesting sections on the 20's; the advent of newspapers, radio and film; women's suffrage (seemed a bit slim, though); and a Supreme Court as crooked and partisan as the one we have in 2023. A constant theme throughout was how Blacks continued to be treated. The next book should prove to be particularly interesting on that front. show less

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 show more 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) show less