At the end of his uncompromisingly critical appraisal of the Supreme Court, James MacGregor Burns issues a challenge to the high bench that could make the justices fall right off it. In Packing the Court, Burns imagines a president—he hopes this president—leading Congress to pass progressive legislation that amounts to a new New Deal. If a "hostile" Supreme Court then struck down such a compact, the president, Burns proposes, should refuse to obey the court. The president "would flatly announce that he or she would not accept the Supreme Court's verdicts because the power of judicial emasculation of legislation was not—and never has been—in the Constitution."
It gets better. Because the text of the Constitution doesn't give the Supreme Court the power to decide which laws should stand, it would be up to the president's opponents, whom Burns styles "the partisans of judicial supremacy," to go through the long, hard slog of passing a constitutional amendment. Burns acknowledges that the "risky strategy" he outlines might bring on rumblings of impeachment. "In the ensuing turbulence, though, the president would have an enormous strategic advantage," Burns writes. "He would need only to sit tight." Talk about burden shifting.
OK, back to Earth, where a smackdown between Obama and the Supreme Court is nowhere on the horizon. But it's a tribute to Burns' lucid history of the Supreme Court that by the time you reach his audacious proposal, tucked into the conclusion, you're ready to entertain it seriously for a moment—and to think about its merits for longer. Burns, an emeritus professor of government at Williams, succeeds in pushing us into the realm of implausibility by expertly marshalling his historical evidence. His signature interest is leadership, which he has been writing about for half a century (including prize-winning books about FDR and JFK), and "he has developed a particular fascination with what he believes is the power of extraordinary political leaders at crucial moments to transcend and transform the impersonal forces of history," as historian Gordon Wood puts it. In this new book, he has turned his attention for the first time from Congress and the president to the Supreme Court, and you can feel his frustration with the unelected, motley crew of justices who he thinks have gotten in the way of various more capable presidents.
Burns begins, as he must, by taking aim at Marbury v. Madison, the courts' first turn as usurper. The Constitution did not grant the Supreme Court, or any other court, the power of "judicial review"—the authority to strike down federal laws as inconsistent with the text or meaning of the Constitution as the court interprets it. Instead, Chief Justice John Marshall stealthily took this power for his branch in Marbury in 1803.
Burns then takes us on a tour that shows how the court has used its self-appointed authority on behalf of powerful entrenched interests: railroads, the white Southerners who dismantled Reconstruction, free-marketeers, New Deal opponents, and, most recently, George W. Bush's presidential campaign. Americans may think of the court as "the ultimate guardian of their civil rights and liberties, and the defender of individuals against oppression, of powerless minorities against majorities," Burns writes. Conservatives may haul out that image of the court to shoot at in every election cycle. But, in truth, it is a recent image forged by a single "luminous exception" to the court's regressive business as usual: the liberal Warren Court of school desegregation and voting rights and expanded protections for criminal defendants. That blip should not fool us into thinking we can consistently trust the court to be a fair arbiter of what the constitution really means.
Burn's basic critique of judicial review dates back at least 100 years to the work of James Bradley Thayer, who believed that the Supreme Court should strike down only laws that were in "clear error." This idea reached the high bench in the person of FDR appointee Justice Felix Frankfurter. As Yale law professor Bruce Ackerman reminds me, this was the core tenet of conservative legal theory until Judge Robert Bork and Justice Antonin Scalia came up with the more muscular doctrine of originalism in the 1980s. And judicial restraint as a guiding philosophy still has plenty of backers in the legal academy and on the bench. Chief Justice John Roberts talked it up during his confirmation hearings. You can see the broad appeal. After all, in a democracy, why should nine unelected judges have accrued so much power to themselves?
Burns marries his criticism of judicial review to a cold-eyed assessment of the reviewers. He points out that presidents from George Washington on down have tried to ensure their party's continuing dominance by filling the courts with "party politicos," through an appointment process that amounts to roulette, since life tenure makes the timing of vacancies uncertain. This is the meaning of the "court packing" of the book's title. The phrase isn't particularly helpful, since the process of appointment Burns attacks—unlike the claim to judicial review in Marbury—would seem to follow unremarkably from the framers' design. If the Constitution's authors didn't anticipate that presidents would appoint justices whom they saw as simpatico or that justices would take life tenure as the employment equivalent of till death do us part, well, they should have.
But set aside that quibble, because Burns' larger argument about the court's failings wears well through his historical narrative. "Inevitably, life tenure has produced a critical time lag, with the Supreme Court institutionally almost always behind the times," he writes. "As a result, too often the Supreme court has seemed to be fighting the progress of history." Of this, there are all too many examples. In the 19th century, Burns points to the wrong and immodest Dred Scott decision, in which the court declared that no black person could claim national citizenship. There was also the court's gutting of Congress' Reconstruction-era promises of equal rights in the 14th Amendment, culminating in the disastrous separate-but-equal principle enshrined in Plessy v. Ferguson. In the beginning of the 20th century, the court stubbornly clung to laissez-faire economics, as demonstrated by its aversion to state laws that protected workers, most famously in Lochner v. New York. Burns catalogs the justices who made these rulings and shows how many of them were political operatives and small-town lawyers, many of whom stuck around for decades. Most of their names have been forgotten, even in law-school classes (at least if my memory is any indication). With all the (unjustified) talk of whether Obama's current pick for the court, Sonia Sotomayor, is brainy enough for the job, it's worth remembering that in the past, intellectual pygmies rather than giants have been the rule on the Supreme Court.
During the Warren Court era, with spillover into the Burger Court of the 1970s, the court stopped striking down anti-establishment laws * and started interpreting the Constitution to find new protections for criminal defendants, minorities, women, and other formerly dispossessed groups. This "seduced" the left, as Burns puts it, "into the belief that the court, not the political branches, with their fickle, opportunistic politicians and swayable constituencies, was the best constitutional vehicle to extend and protect progressive gains into the future." Burns rues this love affair as short-sighted. Once the Rehnquist Court got up some steam, the court reverted to its old progress-stopping ways. It struck down more federal statutes than ever before, but now they were the kinds of laws that sought to regulate big business, or to ensure religious freedom, or to give women the right to bring a federal suit against a batterer. And then, of course, came Bush v. Gore, the quintessential example of conservative judicial activism.
And yet you have to reach back to find liberal politicians willing to attack the Supreme Court. Teddy Roosevelt railed at the high bench as "a menace to the nation" when it blocked his progressive-era efforts to rein in laissez-faire economics, and went so far as to push for recall votes of judicial rulings, via referenda. FDR's plan to increase the number of justices from nine to 15 (the usual meaning of court packing) followed from an earlier proposal that would have allowed Congress to re-enact a law that the court had declared unconstitutional. Other stillborn plans to limit the court's sway: ending the justices' life tenure and requiring a supermajority of them to strike down a congressional statute.
Go back to the question about why unelected judges should have such outsized power in a democracy, as well as to the shaky foundation of Marbury, and you can see why Burns' vision of a president who quietly tells the court to get lost isn't necessarily a nightmare. And yet I can't really go there. Would we really be better off placing more faith in Congress or a shades-of-Cheney strong executive?
Maybe I'm only revealing that I'm among the seduced, but it seems to me that often the Rehnquist and Roberts courts have saved themselves by stepping back from the brink of crazy-bad meddling with Congress. In the term that just ended, the justices looked poised to declare two foundational civil rights laws unconstitutional. And then they didn't. We don't know why. But as Jack Balkin argues on his blog, Balkinization, it's possible that the justices (or at least swing-justice Anthony Kennedy) read the changed weather pattern that was the Obama election cycle and decided that the court should not risk "sacrificing the Court's legitimacy in a climate in which neither the President nor the Congress would support their gambit and would in fact do everything possible to undermine their legitimacy." Maybe the justices know just what it takes to keep their seats and have no intention of losing them.
Correction, July 7, 2009: This article originally stated that the Warren court stopped striking down laws that helped the establishment. The author meant to write that the court stopped striking down anti-establishment laws. (Return to the corrected sentence.)