Packing the Court: The Rise of Judicial Power
and the Coming Crisis of the Supreme
Court
By James MacGregor
Burns
(Penguin Press, 326 pages,
$27.95)
In contemporary legal scholarship, few persons on the left
question the legitimacy of judicial review. Despite displeasure
with certain rulings, liberals rarely challenge the authority of
courts to invalidate statutes and executive actions. Their
acceptance of the status quo is easy to understand. Since the
1950s, liberal judges have written their policy preferences into
several areas of the law, striking down a large body of legislation
relating to school prayer, pornography, contraception, abortion,
and homosexuality. Ostensibly, the basis for invalidating these
laws is their incompatibility with specific constitutional
provisions. But a distinctly liberal style of judicial review has
emerged, one that exploits more broadly worded provisions and
strips elected representatives of their authority to legislate on
highly contested cultural issues. This kind of judicial review
knows few limits, and given the current political alignments in
Washington, liberals are generally sanguine about the future.
To his credit, the distinguished historian James MacGregor Burns
is unafraid to question the platitudes of our day and some widely
held notions about progressive or “enlightened” jurisprudence. His
new book is both a historical survey and an assessment of the
extraordinary power that the Supreme Court of the United States now
wields. Burns deems that power illegitimate—the justices of the
Supreme Court have become de facto “lawgivers”—and he wants to
document its origins. He also considers previous attempts to resist
it.
As a work of history, Burns’s book is instructive and lively
reading. As a polemic against judicial power, however, it suffers
from several biases. His criticisms against the high court, for
example, could have easily been extended to the current practice of
judicial review by several state supreme courts—especially in the
Northeast. His failure to extend the critique suggests something
about his goals in writing the book and points to several problems
in his scholarship. Saying too little about federalism and
competing theories of constitutional interpretation, Burns has not
engaged his topic fully.
From the outset, he insists that the Framers never intended for
federal courts to invalidate policies by Congress or the president.
His evidence? There is no explicit directive or license in
Article III of the Constitution.
Yet the lack of an express warrant in Article III did not
prevent Alexander Hamilton from defending judicial review. In
Federalist No. 78, he ascribed to the judiciary the task
of interpreting laws, including the Constitution, which he
designated our “fundamental law.” Thus, if Congress passes a law
that conflicts with the Constitution, the latter should take
precedence. By itself, judicial review does not imply “a
superiority of the judicial to the legislative power.” Nor does it
imply anything about how the judiciary—the weakest or “least
dangerous” branch of government—might induce Congress (or the
president) to comply with its decisions. Hamilton recognized
noncompliance as a potential problem, but did not propose any
remedy for it, perhaps because he could not conceive of one.
Since Burns sees judicial review as incompatible with the
Framers’ commitment to republican government, he must explain how
it took root. One villain in his account is John Marshall, chief
justice of the United States from 1801 to 1835. In Burns’s
judgment, Marshall made an audacious power grab in Marbury v.
Madison (1803), when the Supreme Court struck down a portion
of the Judiciary Act of 1789.
In justifying the decision, Marshall made arguments similar to
Hamilton’s in Federalist No. 78. Burns fails to mention
the similarities, and he interprets Marshall’s opinion in
Marbury as an assertion of judicial supremacy—the view
that the Supreme Court enjoys the final or definitive
interpretation of the Constitution (vis-à-vis the other
branches of government). Other scholars, however, read
Marbury less expansively.
In any event, the Supreme Court explicitly asserted judicial
supremacy only in the second half of the 20th century. As Burns
shows, for much of our history leading politicians argued that each
branch of government has an important role in interpreting the
Constitution. In Thomas Jefferson’s “departmentalist” theory, each
branch had an “equal right” to determine the constitutionality of
actions within its own sphere. President Andrew Jackson reputedly
goaded the chief justice by remarking, “John Marshall has made his
decision; now let him enforce it.” And Abraham Lincoln refused to
bow down before the Supreme Court’s infamous decision in Dred
Scott v. Sandford (1857), denying that the ruling could be
taken as “settled doctrine” for the nation.
Lincoln’s criticisms of Dred Scott proved prescient, as
the decision hastened the onset of the Civil War. Following
Lincoln’s death, departmentalist theories of constitutional
interpretation began to wane, with a corresponding growth of
judicial power. During the next few decades, the Supreme Court
served the cause of laissez-faire economics in dubious ways.
For Burns, those decades were a dark era in American
constitutional history. In cases such as Lochner v. New
York (1905), the justices struck down social welfare
legislation, including workplace regulations and minimum-wage laws.
One instrument for this freewheeling judicial review was the
judicially invented right of “liberty of contract.” Facing intense
criticism, the Court repudiated “liberty of contract” in West
Coast Hotel v. Parrish (1937) and upheld crucial legislation
associated with the New Deal.
Burns argues that the decisions in cases such as Dred
Scott and Lochner were in some respects predict-able,
given the political views of certain presidents. “Packing the
court” characterized American politics even during the antebellum
era. Presidents sought to influence national politics by nominating
men to the Supreme Court who embraced the same political or
economic philosophy. This practice continued in the 20th century.
Franklin Delano Roo-sevelt’s threat to increase the number of
Supreme Court justices—to gain the Court’s approval of the New
Deal—was one kind of court packing in response to a different kind
by the Republican presidents who preceded him.
In the years since West Coast Hotel v. Parrish, the
Supreme Court has held that economic and social welfare legislation
must only have some rational basis to be constitutional. But as the
subtitle of his book suggests, Burns worries that the Supreme Court
under Chief Justice John Roberts may strike down large swaths of
“progressive” legislation sponsored by President Barack Obama.
Burns may anticipate a replay of the Lochner era, but
fretting about this possibility will seem overblown to many
readers.
The subtitle merits one other comment. The reference to the
“coming” crisis suggests that Burns is not greatly troubled by the
workings of the Supreme Court in recent decades. His concluding
chapters support this view. Judicial power causes Burns fewer
worries when that power is being used to advance a liberal agenda.
Accordingly, Burns speaks of the exemplary “leadership” of Chief
Justice Earl Warren (1953–1969) and praises the “painstaking
handiwork” of Justice Harry Blackmun’s controversial opinion in
Roe v. Wade (1973).
Burns might be correct in saying that the Supreme Court has more
often used its power to promote conservative ends than liberal
ends. But conservative fears cannot be dismissed; “liberal
law-giving” is a fact, not a mirage. Nearly everything Burns says
at the beginning of his book could be cited by conservatives to
help them articulate their position today. Burns’s ardent
liberalism thus prevented him from producing a more satisfying
critique.
topics:
Supreme Court, John Marshall
