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NONFICTION: The Highest Branch?

Packing the Court:
The Rise of Judicial Power and the Coming Crisis of the Supreme Court
James MacGregor Burns

Penguin, 2009

James MacGregor Burns’s lucid narrative demystifies the Supreme Court, appealing to layman and specialist alike. Burns brings alive the major eras of the Court, along with its key personalities and the presidents who tried (usually unsuccessfully) to mold the Court to their will, or “pack” it. As nominee Sonia Sotomayor was predictably grilled about whether judges make law or only implement it, Packing the Court asks what constitutes popular will and what is the best way to execute it.
In previous books like The Power to Lead (1984), Burns calls for the kind of transformative leadership that is constantly frustrated by countermajoritarian tendencies in our system of government. Judicial review, for which Burns finds no sanction in the Constitution, is the latest target of his ire. The Supreme Court, unelected and tenured for life, interferes with speed and efficacy in legislative action (unlike in a parliamentary system). Opponents would answer that this is precisely the spirit behind the institution.

For Burns, Chief Justice John Marshall invented judicial review out of whole cloth: “The Framers made no general grant of a judicial power to invalidate laws passed by Congress and signed by the president.” In Marbury v. Madison, Marshall conceded to his nemesis Thomas Jefferson the smaller point about Marbury’s commission, while declaring it “the province and duty of the judicial department to say what the law is.” While Marshall was cautious about exercising this right, as the Court generally was until Dred Scott helped usher in the Civil War, the precedent was established.
Burns downplays the scholarship on precedents for judicial review in Anglo-American law in the decades prior to Marbury. While American judicial review is without parallel in the world (including Britain), Alexander Hamilton argued for something like it in Federalist No. 78. Charles Beard claimed, in the period when the Court was striking down Progressive-era economic legislation, that the framers intended the Court to be a conservative institution protecting property rights. Many argue that while the Court should be moderate in judicial review, tempering its interference with popular will, the judiciary remains the best arbiter of the constitutionality of laws, because it is impartial, independent, and best trained for the function. For Burns, however, only the people’s will counts, and even “moderate” judicial review is repugnant.

The Court’s checkered history gives Burns much ammunition. Before the Civil War, the Court either left alone or aggravated the key human rights questions of the day. From the end of the Civil War until 1937, the Court eviscerated the Fourteenth Amendment to put African-Americans back in an inferior position, and invalidated labor-oriented legislation under the dubious “substantive due process” doctrine. This activism reached its peak during the Great Depression, as the Court struck down one New Deal law after another. Since Roosevelt’s confrontation with the Court in 1937, the Court has deferred on economic matters, while adopting individual rights as its specialty. The Warren Court (1953-1969) became the defender of individual liberties as never before or since. Much of what liberals hold dear about America goes back to the Warren Court’s activism. The Burger, Rehnquist, and Roberts Courts have progressively diminished the Warren Court’s architecture, though much of it remains in place.

Accepting judges as the final policymakers, some liberal commentators argue that judges should be more activist in extending individual rights. Burns will have none of that. Judicial supremacy is no way to permanently secure rights: “The combination of the Supreme Court’s institutional conservatism, temporarily overridden…and the instabilities promoted by the judicial roulette of court appointments all but ensured that Warren Court liberalism would be threatened with backlash and reversal.” But why has Congress abandoned leadership? The Warren Court was ahead of public opinion on segregation, privacy, free speech, and the rights of the accused. Public opinion would have institutionalized McCarthyism (as it would have the “war on terror”). A counterargument is that the other two branches abandon leadership when they can punt to the Court for the last word. Difficult choices are put off and self-emasculation sets in.

Burns’s book, intellectually and polemically robust, adds much needed fuel to the fire. Is judicial review always usurpation? Are there institutional solutions to mitigate some of its more pernicious effects? How should we address the vacuum of leadership the Court has filled? Is our ingrained expectation of the Court as the final policymaker harmful? How can public opinion in periods of national hysteria be checked?

Transformative leadership was precisely what the framers didn’t want. Dare we alter the equation? Burns’s book puts readers well on the path to thinking these questions out for themselves.


Anis Shivani


The Brooklyn Rail

NOV 2009

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