Reviewed by Richard A. Glenn, Department of Government and Political Affairs, Millersville University, Pennsylvania.
Criticism of the Supreme Court has been a persistent theme in American politics. In 1819, Spencer Roane and other states’ rights supporters accused the Marshall Court of exercising “arbitrary power.” In the mid-nineteenth century, abolitionists and Union supporters indicted the Taney Court for its acts of “tyranny.” The NEW YORK TIMES, in response to EX PARTE MERRYMAN (1861) – the case in which Chief Justice Roger Taney, sitting as a federal circuit court judge, declared President Abraham Lincoln’s suspension of the writ of habeas corpus unconstitutional – noted, “Of all the tyrannies that affect mankind, that of the Judiciary is the most insidious, the most intolerable, the most dangerous.” In 1930, Senator George W. Norris of Nebraska could no longer contain his frustration with the “obstructionist” tactics of the Court. Rising to the floor of the Senate, he thundered, “We have a legislative body, called the House of Representatives, of over 400 men. We have another legislative body, called the Senate, of less than 100 men. We have, in reality, another legislative body, called the Supreme Court, of nine men; and they are more powerful than all the others put together.” A generation later, the issue was race, the villain the Warren Court, but the criticism familiar: Beware the imperial judiciary. Into this long line of critics steps James McGregor Burns.
Professor Burns has forgotten more about American politics than most Americans will ever learn. His introductory textbook, GOVERNMENT BY THE PEOPLE, was originally published in 1952; it is now in its twenty-fourth edition. Burns’ first Pulitzer Prize, a biography on President Franklin D. Roosevelt, came more than a half century ago; the sequel also earned a Pulitzer. Now in his tenth decade, Burns remains active in the discipline. PACKING THE COURTS: THE RISE OF JUDICIAL POWER AND THE COMING CRISIS OF THE SUPREME COURT is Burns’ contribution to a seemingly ever-expanding collection of books critical of the Court. Burns’ criticism, however, is not even-handed. He is not troubled by the exercise of judicial power in and of itself, but deeply troubled by the exercise of judicial power by conservatives.
I doubt that PACKING THE COURTS would have been written were it not for two relatively recent political occurrences – the appointments of John Roberts and Samuel Alito to the Supreme Court in 2005 and 2006 respectively; and the election of 2008, which kept the Democratic Party in control of both chambers of Congress and put Barack Obama in the White House. The former resulted in the Court moving, even if only incrementally, to the [*39] right. The latter created the opportunity for more partisan conflict between the Court and the elected branches of government. The potential that a “conservative” Court might impede a “liberal” majority makes it easier for Burns to articulate his thesis statement:
The Framers did not include a judicial veto in the Constitution because they did not want it. They would not grant that supremacy over the elected branches to a nonelected judiciary. The Supreme Court instead acquired its power through a brilliant political coup at the hands of Chief Justice John Marshall in 1803. . . . Building on Marshall’s dictum, the Supreme Court has, over the last two centuries, made itself the center of constitutional action. In doing so, it has distorted the intricate checks and balances the Framers believed were essential to the success of the American experiment. . . . [T]he justices have so successfully enlarged and consolidated the power of judicial review that they have become, in effect and often explicitly, lawgivers. And, . . . [t]hey are never held politically accountable to the American people (pp. 2-3).
The remainder of the book seeks to show that the justices have become “politicians in robes.” Politics certainly makes strange bedfellows – James McGregor Burns and Robert Bork.
The evidence is presented in twelve chapters, each of which covers a readily identifiable era of Court history. The first chapter (1787-1801) begins at the Constitutional Convention and concludes with Marshall’s appointment to the center seat; the second chapter (1801-1835) covers Marshall’s tenure; and so forth. The twelfth chapter, derisively subtitled “The Cheney-Bush Court” (one in a line of labels that reveal more about Burns than the subject being discussed), covers the Roberts Court, but only through the presidency of George W. Bush. Each chapter is about twenty pages in length and can easily be read in a single setting. The epilogue, proposing a far-reaching solution to a problem not everyone sees, is the most controversial part of the book. A handy appendix provides a chronological list of every justice, with dates of birth and death; name of appointing president; president’s political party; term of service; and reason for leaving the Court.
Burns’ analysis of MARBURY v. MADISON (1803) – in which Marshall staged his “brilliant political coup” – is lacking. For starters, Burns accuses the chief justice of having some grand plan to elevate the Court to a position of importance in the American political structure. “How was the Supreme Court – holed up in dingy quarters in the new Capitol . . . and widely despised by the public as the tool of a discredited political party – to become what John Marshall fervently believed it should be: the final authority in all matters constitutional? Suddenly an opportunity opened up, one that perhaps only a politician of Marshall’s vision and determination might have seized” (p. 30). Yet Burns offers the reader nothing that would qualify as evidence that Marshall schemed in this matter. The fact that the Court’s status was elevated as a result of MARBURY is not evidence that MARBURY was Marshall’s concoction. More importantly, Burns does not give Marshall’s justification for judicial review a fair shake. He states merely that the grant of jurisdiction to the Court [*40] by the Judiciary Act of 1789 in such cases as this was “in conflict with Article III” and, as such, unconstitutional. Those familiar with MARBURY who are wishing to use this book in the classroom will be disappointed that Burns overlooks the three constitutional pillars upon which the chief justice based the assumption of judicial review – Article III’s declaration that federal judicial power extends to all cases “arising under this Constitution [and] the laws of the United States” (of which this case presumably involved both); Article VI’s command that all judges “be bound by Oath or Affirmation, to support this Constitution”; and Article VI’s insistence that all federal laws be made “in Pursuance” of the Constitution. None of that justification – whatever its strength – can be found in Burns’ recitation of this important case.
Burns’ rejection of the legitimacy of MARBURY is based upon his conclusion that judicial review was not a normal function of courts at the time of the ratification of the Constitution. This may well be the case. Leonard Levy, among others, has documented the absence of formal judicial review in the colonial period. And it is certainly true that the Framers failed to spell out judicial review literally in the Constitution. Yet, some evidence exists that the idea was more widely accepted than Burns admits. The records of the Constitutional Convention show that no less than two dozen delegates – including Alexander Hamilton, James Madison, Gouverneur Morris, and James Wilson – supported the principle of judicial review. In The Federalist, No. 78, written in 1788, Hamilton offered his views: “[T]he courts were designed to be an intermediate body between the people and the legislature, in order, among other things, to keep the latter within the limits assigned to their authority” (435). Numerous constitutional authorities are in general agreement about the Framers’ acceptance of judicial review. Additionally, Burns does not consider, as Levy did, the possibility that judicial review was an inevitable historical outgrowth of the constitutional theory of the American Revolution, the culmination of a century of revolutionary thought that called for a government of laws and not of men. Regardless, any argument against judicial review in principle is a tall task and one that is hard to take seriously after two centuries. The evidence against has been more strongly made elsewhere.
In each subsequent chapter, Burns follows a consistent approach. First, he discusses the politics of presidential appointments to the Supreme Court – why the individual was nominated, how the nomination was received, and whether that justice ultimately lived up to his or her party’s expectations. He concludes, to the surprise of no one, that all presidents have tried to pack the Court with like-minded individuals. And, because most nominees were “party politicos” who owed their elevation to “party ties,” most justices did not abandon their party doctrines. The brief biographies of certain justices are often informative, but this material is entirely unoriginal, and its breadth and analysis pales in comparison to Henry J. Abraham’s JUSTICES, PRESIDENTS, AND SENATORS.
Second, Burns attempts to demonstrate how judicial review has undermined [*41] democracy, protected politically entrenched interests (slave owners, the railroads, corporations, white southerners, free market supporters, and New Deal opponents), and thwarted social progress. The cases on which he relies are familiar to any student enrolled in a constitutional law seminar. For the Marshall years, he cites FLETCHER v. PECK (1810), MARTIN v. HUNTER’S LESSEE (1816), and McCULLOCH v. MARYLAND (1819). McCULLOCH is odd evidence of Burns’ thesis. It involved contradictory federal and state statutes. In any federalism dispute, someone must decide whether the federal or state rule governs. If the Court had not resolved McCULLOCH, it is not clear who would. For the Taney years, SCOTT v. SANDFORD (1857), prohibiting any attempt by Congress to interfere with slave owners’ property rights, earns the most condemnation. Burns is particularly bitter at the Court’s civil rights decisions during Reconstruction (which he calls “Deconstruction”) – THE SLAUGHTERHOUSE CASES (1873), UNITED STATES v. CRUISHANK (1876), and PLESSY v. FERGUSON (1896) – and those that embraced the economic philosophy of laissez-faire capitalism, most notably LOCHNER v. NEW YORK (1905) and the numerous cases struck down between 1933 and 1937.
Burns’ bitterness largely disappears, however, when writing about the exercise of judicial review post-1937. An objective reader might well conclude that Burns is far more bothered by a conservative Court striking down progressive legislation than he is bothered by a liberal Court striking down a conservative agenda. Between 1963 and 1969, the Warren Court nullified sixteen federal statutes and 113 state and local laws, a rate approached only by the Taft Court between 1921 and 1930. Yet the Warren Court’s meddling gets praise: “By making the Supreme Court a center of progressive reform, [Earl] Warren would forge a luminous exception to the court’s historic role as the bulwark of anti-democratic, anti-egalitarian conservatism” (p. 180). Burns is an inconsistent supporter of judicial restraint; his real beef is not with judicial review, but with conservatism. This becomes quite clear in the last two chapters, where Burns rediscovers his critical voice, conveniently just as the appointees of Republican presidents Richard Nixon, Ronald Reagan, George H. W. Bush, and George W. Bush reassert control of the Court. The Rehnquist Court, Burns writes, “make[s] the rules . . . to an unprecedented degree” (p. 236). But it is not judicial rulemaking that troubles Burns. It is judicial rulemaking of a conservative brand that troubles him. Objectivity compels an acknowledgement that both conservatives and liberals engage in judicial rulemaking.
I was unable to connect easily the various themes represented in the book’s title. Part of each chapter is about PACKING THE COURTS. And part of each chapter is about THE RISE OF JUDICIAL POWER. In a few specific instances, Burns shows how a single justice has given a decisive tilt to the Court’s balance, but not often enough to justify the ink spilled on nominations. More times than not, I found the PACKING THE COURTS information unnecessary and unrelated to THE RISE OF JUDICIAL POWER. It is only in the epilogue that I learned about THE [*42] COMING CRISIS OF THE SUPREME COURT. Although the specifics are missing, presumably it will come when a conservative Court confronts a liberal political majority, as in the 1930s. And when it comes, the crisis will be “on the same magnitude as the Civil War and the Great Depression” (p. 5).
To avoid this crisis, the president should announce flatly that he will not accept Supreme Court decisions that invalidate vital progressive legislation because the power of “judicial emasculation of legislation” was not in the Constitution or intended by the Framers. The president would then invite the “partisans of judicial supremacy” to propose a constitutional amendment to establish the power of judicial supremacy. (The exact language of the potential amendment is not provided.) This, Burns believes, would allow the people the opportunity to constitutionalize judicial rule (p. 253). If judicial review were rejected, as Burns thinks it would be, the courts could still interpret ambiguous statutes, adjust conflicting laws, clarify jurisdictions, and police the boundaries of federal-state relations (p. 254). (This last one – policing federal-state relations – is puzzling, given Burns’ flagging of McCULLOCH in Chapter Two and the contentiousness of health care today.)
Abolishing judicial review, Burns believes, would open the way for majority rule. Whether any values are beyond the scope of political majorities he does not say. Burns admits that majorities can make dreadful mistakes. But so has the Court, says Burns, as DRED SCOTT, KOREMATSU v. UNITED STATES (1944), and BUSH v. GORE (2000) demonstrate (p. 256). This is indeed a curious comparison – the protection of slave owners’ property rights, the internment of Japanese-Americans without due process of law, and judicial resolution of a contested presidential election. Furthermore, abolishing judicial review would not remedy the internment matter, which originated not with the Court but with the political branches (and was supported by the politician Warren).
Burns refers to this plan as “momentous,” “daring,” and “inspiring” (pp. 252-253). It is also dangerous. President Harry Truman could have rejected the Court’s directive in YOUNGSTOWN SHEET AND TUBE COMPANY v. SAWYER (1952). President Richard Nixon could have ignored the Court’s order in UNITED STATES v. NIXON (1974). President George W. Bush could have disregarded HAMDAN v. RUMSFELD (2006). Imagine the liberal furor if President Bush had done that.
Burns does not discuss how this proposal would affect the exercise of judicial review over the acts of state laws. This is a significant oversight, as the Court is far more likely to strike down state laws than it is to invalidate federal ones. (More than twelve hundred state laws have run afoul of the Constitution since 1789, as compared with approximately two hundred federal ones.) Burns does not appear to take seriously other, less audacious, proposals to restrain judicial excesses, such as ending life-tenure; requiring a supermajority of justices to declare state or federal laws unconstitutional; and reversing unpopular decisions by constitutional amendment. And Burns dramatically overstates judicial arrogance and power. [*43] The Court’s switch-in-time-that-saved-nine in 1937 demonstrates that the Court tends toward a political equilibrium. The slow pace of desegregation after BROWN v. BOARD OF EDUCATION (1954, 1955) illustrates well Hamilton’s adage about the Court being “the least dangerous branch” because it lacked the powers of the purse and the sword. Even ROE v. WADE (1973) and its progeny undercut somewhat Burns’ argument about the Court being immune to political headwinds. Congress and the states have limited the reach of the Court’s ruling by enacting laws restricting the availability of abortions, and the courts have mostly acquiesced. (This acquiescence, I suggest, is likely the result of some strategic retreat by the courts coupled with the effects of conservative appointments to the federal bench.) Additionally, abortion politics now regularly dominate judicial nomination and confirmation politics. The American electorate has engaged the Court on this subject, and the “great tides and currents which engulf the rest of men, do not turn aside in their course and pass the judges by” (Cardozo, 1921: 168).
A conversation on keeping the courts within appropriate limits is worthwhile. Aggressive courts can pose real problems in a democratic society. But Burns’ solution is too much. It would require courts to abdicate what can fairly be described as judicial responsibility. It would elevate the presidency. And it would lead to absolute majoritarianism. Throughout the book, it is never clear why Burns chooses majority rule as a main principle over limited government, especially given the many anti-democratic features of the Constitution (Levinson, 2006). Faith in democracy is admirable; blind faith less so.
Abraham, Henry J. JUSTICES, PRESIDENTS, AND SENATORS: A HISTORY OF U.S. SUPREME COURT APPOINTMENTS FROM WASHINGTON TO BUSH II. New York: Rowman and Littlefield, 2008.
Cardozo, Benjamin. THE NATURE OF THE JUDICIAL PROCESS. New Haven, CT: Yale University Press, 1921.
Hamilton, Alexander, James Madison, and John Jay. THE FEDERALIST PAPERS. New York: Mentor Books, 1961.
Levinson, Sanford. OUR UNDEMOCRATIC CONSTITUTION. New York: Oxford University Press, 2006.
Levy, Leonard. ORIGINAL INTENT AND THE FRAMERS’ CONSTITUTION, New York: Macmillan Publishing, 1988.
BROWN v. BOARD OF EDUCATION, 347 U.S. 483 (1954)
BUSH v. GORE, 531 U.S. 98 (2000)
CITIZENS UNITED v. FEDERAL ELECTION COMMISSION, 558 U.S. ___ (2010)
DRED SCOTT v. SANDFORD, 60 U.S. 393 (1857)
FLETCHER v. PECK, 10 U.S. 87 (1810)
HAMDAN v. RUMSFELD, 548 U.S. 557 (2006)
KOREMATSU v. UNITED STATES, 323 U.S. 214 (1944) [*44]
LOCHNER v. NEW YORK, 198 U.S. 45 (1905)
MARBURY V. MADISON, 5 U.S. 137 (1803)
MARTIN v. HUNTER’S LESSEE, 14 U.S. 304 (1816)
McCULLOCH v. MARYLAND, 17 U.S. 316 (1819)
PLESSY v. FERGUSON, 163 U.S. 537 (1896)
ROE v. WADE, 410 U.S. 113 (1973)
THE SLAUGHTERHOUSE CASES, 83 U.S. 36 (1873)
UNITED STATES v. CRUISHANK, 92 U.S. 542 (1876)
UNITED STATES v. NIXON, 418 U.S. 683 (1974)
YOUNGSTOWN SHEET AND TUBE COMPANY v. SAWYER, 343 U.S. 579 (1952)
© Copyright 2011 by the author, Richard A. Glenn.