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The Supreme Court on TrialJames MacGregor Burns takes aim at the bench.

By Emily BazelonPosted Monday, July 6, 2009, at 10:00 AM ET

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."

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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.

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Emily Bazelon is a Slate senior editor and an editor of DoubleX.

COMMENTS

Seems to me that tenure, a peripheral issue in this discussion, should really be regarded as the centrally obnoxious feature of the court's makeup, which contributes critically to its mediocrity and lack of responsiveness, to say nothing of the dispiriting nature of appointment battles.

As an alternative to the radical surgery of undoing Marbury, how about giving up lifetime tenure for federal judges? If we limited everyone to one 10-year term (say) for each of district, appeals, and supreme court levels, it seems to me that that would draw much of the poison from appointment politics, and naturally bring court culture more closely in sync with the nation. We might wind up limiting the "contributions" of talented jurists with more to give, but it's not as if the U.S. is short of legal talent. The depth of the bench (hah!), which is otherwise an embarrassment in our heavily over-lawyered culture, actually would work in our favor if we started rotating lawyers in --- and out --- of the federal judiciary.

I realize that takes an amendment, which is hard. Seems worth it, though.

-- Carlo Graziani
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