Two big ideas animate “Packing the Court.” One is that the court has for more than 200 years illegitimately claimed a power not granted to it by the Constitution. The other is that it has on the whole used this power to protect the powerful and to thwart progress.
James MacGregor Burns is a distinguished historian best known for his work on Franklin Delano Roosevelt, and the book’s title is, of course, a reference to Roosevelt’s failed attempt to increase the number of justices after the court repeatedly struck down New Deal legislation. That episode, presented in lively detail, accounts for only two of the book’s 12 chapters, but it informs Burns’s view of the court from start to finish.
Burns is deeply hostile to Chief Justice John Marshall’s claim, in Marbury v. Madison in 1803, that the Supreme Court has the last word on whether the actions of the other two branches are constitutional. “The court’s vetoes of acts of Congress are founded in a ploy by John Marshall that was exploited and expanded by later conservatives until the court today stands supreme and unaccountable,” Burns writes.
He proposes a counterattack. If the court repeatedly strikes down “vital progressive legislation,” he says, the president should “announce flatly that he or she would not accept the Supreme Court’s verdicts.” The case against judicial review has been made more fully and rigorously elsewhere, but whatever its merits, it is hard to take very seriously as a practical matter this late in the life of the Republic.
Burns is more persuasive when he writes that the court “has far more often been a tool for reaction, not progress.” The justices are, after all, often a sort of lagging indicator, legacies of the presidents who appointed them decades earlier. There is a random element, too. President William H. Taft appointed six justices in three years. The last Democratic president, Bill Clinton, appointed two justices over eight years; the one before him, Jimmy Carter, had no appointments in his single term. This amounts, Burns writes, to a “judicial roulette wheel.”
The court’s history as recounted by Burns certainly does not lack low points. In its first use of the power of judicial review established by the Marbury decision, the court declared in the Dred Scott case in 1857 that black people could be property but not citizens. During Reconstruction, Burns writes, the court extended the liberty of entrepreneurs and corporations even as it frustrated Congressional efforts to protect freed black slaves from Southern racism and violence.
In later years, he continues, the court sided with capital against labor, struck down more than a dozen New Deal-era laws in a single 18-month stretch, tolerated the suppression of dissent and endorsed the internment of more than 100,000 Japanese-Americans during World War II.
But the court-packing controversy at the heart of the book is more instructive than Burns lets on. Roosevelt lost the battle, but he won the larger war when Justice Owen Roberts changed positions in a case about the minimum wage — “the switch in time that saved nine.” The resolution of the court-packing fight suggests that the court tends toward a kind of political equilibrium, and this may undercut some of Burns’s grander claims.
Burns is, unsurprisingly if at some level inconsistently, a great admirer of Chief Justice Earl Warren, who “would forge a luminous exception to the court’s historic role as the bulwark of antidemocratic, anti-egalitarian conservatism.” He is less satisfied with the Rehnquist and Roberts courts, which he says have been “quietly laying the groundwork for confrontation with a president and Congress elected on a platform of change.” Well, maybe. Or perhaps, as in the Roosevelt era, the Obama administration and the court, through changes of personnel, attention to the shifting political winds, and an aversion to the kind of conflict that diminishes the authority of both branches, will learn to live with each other.