Matt's Reviews > Packing the Court: The Rise of Judicial Power and the Coming Crisis of the Supreme Court

Packing the Court by James MacGregor Burns
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Feb 03, 11

Read in January, 2011

America is a nation of laws and litigants. We look, more than any other place it seems, to our courts to settle disputes. This harkens back to our Puritan forefathers, who thought courtrooms a better alternative than blasting away at each other with blunderbusses. Thus, instead of shooting your neighbor over a disputed property line or a poorly constructed big-buckled hat, you could take him before a magistrate. Heavy reliance on the judicial system is the great cultural trait bequeathed to us by the Puritans, along with homicidal fixations and sexual repression. (For real: we are a nation that can happily consume 1,567 iterations of CSI, but collectively poop our pants during a Super Bowl halftime show when, for a millisecond, we were able to see a pasty-covered nipple. Thanks, Puritans!).

In my opinion, the judicial system is actually a good place to solve certain problems, especially when the alternatives are (a) responding to an injustice by dueling your opponent or (b) not seeking redress at all.

By and large, though, people hate the courts, and hate lawyers, right up to the point where they need a lawyer and the courts. One reason that the judicial process rankles is that, in any proceeding, there is only one winner and one loser. Fifty percent of the parties involved will go home thinking that the system has been rigged against them. Only the lawyers are assured of getting something out of the case, which is probably why they are so despised (for some reason, a large percentage of people believe that attorneys should be the only skilled profession in the world to receive no compensation for services rendered).

Of all the epithets hurled at the judicial system, perhaps the most familiar is the scourge of judicial activism. Loosely defined (loosely is the only way to define it), judicial activism refers to a judge who does not rule upon the law as written, but makes a decision for political or personal reasons in furtherance of some policy goal. Judicial activism as been the bête noir of conservatives since Roe v. Wade. During the second Bush Administration, we heard the phrase a lot, so much so that if you were playing an eight-year-long drinking game, you would probably be dead.

Strangely, conservatives haven’t gone to the judicial activist well lately, and the phrase has gotten some much-needed rest. The reason, of course, is that conservatives have solid control of the Supreme Court. The silence comes despite the fact that, by any reasonable metric, these are among the most “activist” justices in recent memory (in terms of invalidating laws, and in terms of granting certiorari for cases they didn’t need to hear, in order to change the law).

The lesson: judicial activism occurs whenever a judge rules against you.

The proof of this comes in the form of James MacGregor Burns’ Packing the Court. Burns, a progressive historian, argues that the whole history of the Supreme Court (with the exception of the Warren Court) is one of conservative judicial activists torturing the Constitution and the law to benefit corporations and moneyed interests at the expense of individuals.

The title, which harkens back to Franklin D. Roosevelt’s plan to increase the number of Supreme Court justices, actually refers (in this context) to the executive habit of elevating cronies and political operatives to the nation’s highest court. Because justices serve for life, it is a crapshoot how many (if any) justices a president will nominate. Accordingly, the court’s composition seldom reflects the current zeitgeist. The result, Burns argues, is a Supreme Court that is nonresponsive to the will of the people.

Packing the Court is a political book. It is a polemic, with a very definite ideological platform; however, unlike many polemics, it is well-researched, lucidly written and up until the last few pages, admirably non-hysterical and wild-eyed.

I want to avoid getting into a political discussion on Goodreads, since I already spend too much time defending my views of Moby Dick. At the risk of showing my own ideological hand, I will say this: conservatives will dislike this book because it is anathema to their beliefs; on the other hand, progressives might find its relatively-brief discourse on Supreme Court history a quick, easily digestible way to learn about the High Court. (However, a far better progressive history of the Supreme Court can be found in A People’s History of the Supreme Court by Peter Irons).

Me? I didn't fall into either of those two camps. Instead, I was utterly underwhelmed by Packing the Court. To put it another way, I was totally overwhelmed by its mundaneness. I don’t expect a lot from polemics, but I do expect to lifted from the torpor that generally comprises my life. That didn't happen here.

After setting the stage with a brief prologue, in which he lays out his thesis that Supreme Court Justices make the law based on their politics, Burns devotes the bulk of this slim volume (just 259 pages of text) to a vanilla retelling of 200-odd years of Supreme Court decisions. He starts with the earliest days, when Supreme Court Justices were mostly political flunkies who didn't last long in office, due to riding circuit, and ends with George W. Bush consolidating a solidly conservative Supreme Court with the additions of John Roberts and Samuel Alito.

Unless this is the first book you’ve ever read about the Supreme Court, there is very little to recommend. He skips quickly from John Marshal to Roger Taney, from William Howard Taft (he was more than just our fattest president!) to Franklin Roosevelt, and from Earl Warren to George W. Bush.

Burns is not an attorney; while this obviously does not disqualify him from writing about the Supreme Court, it really shows in his focus. While he spends a great deal of time on the personalities and machinations of the various presidents and justices, he devotes very little space to actually analyzing the specific opinions with which he disagrees. For example, Burns tells you that Scott v. Sandford (the Dred Scott decision) was morally wrong, which is obvious, but doesn’t explore deeply enough why it was legally wrong.

This book putatively has an axe to grind. Burn, however, grinds it very politely. There is no fire and brimstone, no moral outrage at the 19th Century Supreme Court raping the 14th Amendment, no vim and verve in the writing. Sure, Burns is morally outraged, but he presents that outrage in the form of a decorous, thoroughly researched dissent. Now, I’m not demanding that Burns call Roger Taney a man-beating, liver-spotted old prick; still, it certainly would have captured my oft-waning attention.

Reading any history of the Supreme Court, or indeed, of America itself, is a little depressing, an ugly collision of high ideals and faulty execution. It’s one David and Goliath story after another, except Goliath keeps winning. Of all the justices that have served on the high court, Burns only really likes two: John Marshall and Earl Warren. Marshall is an odd choice for Burns, since Marshall devised the concept of judicial review, which Burns hates. Warren, though, makes sense. Appointed by a Republican, Warren transformed into a liberal éminence grise. His Court gave us some of the most famous progressive decisions ever rendered: Brown vs. Board of Education, Miranda v. Arizona, etc. I love Earl Warren (I guess I’m showing my political hand a bit), but his was an activist court. For Burns, it’s enough that Warren was activist for progressive causes; I, on the other hand, wanted a more rigorous discussion on this apparent discrepancy.

As I mentioned above, the book stays sane up until the last ten pages or so, when it takes a turn down Crazy Road. That’s when Burns unveils his deeply thought-out plan for solving the Supreme Court crisis. His idea: the president should ignore the Supreme Court on the basis of the fact that the Constitution does not mention judicial review.

[Crickets chirping]

It was a bit enjoyable to see a distinguished historian suddenly turn into a Facebook-style grenade thrower (don’t you love those Facebook friends, who make wildly provocative political statements, expecting everyone to agree with them?). Mostly, though, I was flabbergasted. This is his great idea? Why not just break into the National Archives, Nicholas Cage style, and rewrite the Constitution with a black Sharpie?

I mean, it’s just awful. First, it’s never going to happen. Second, if it ever did, it creates five times the Constitutional troubles it is meant to solve. Can you imagine the President – the Chief Executive, the top enforcer of the Law – disregarding the Supreme Court? What kind of respect for the law would that engender? What happens to the precious “separation of powers” that Burns claims to love? I have a dozen more hypothetical questions, but you get the point. Burns hates Andrew Jackson, yet takes a page straight out of Old Hickory’s playbook. (Jackson refused to abide by the Court’s decision in Worcester v. Georgia, leading to the apocryphal story in which Jackson allegedly quipped, “John Marshall has made his law; now let him enforce it”).

I wanted a little more life in Packing the Court. However, I did not want it to end with a feverish hallucination in which one branch of government declares open warfare on another. It seems that Burns could have come up with a better solution. Since he could not, I have come up with my own. To this end, I have eight little words I want you to dwell upon: Robot judges I will build in my garage.

If this doesn’t pan out then, and only then, can we start considering Plan B, wherein the President closes his eyes, sticks his fingers in his ears, and starts screaming “I can’t hear you” towards the Supreme Court Building.
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message 1: by Lis (new) - rated it 4 stars

Lis Carey Great review! I'm still reading the book, and I've definitely been getting the impression so far that I agree with Burns'general outlook but won't necessarily agree with his conclusion and solution.

On the other hand, I was quite pleased with his calm, rational, reasoned condemnation of Taney. What can I say? It's the bane of progressives; we enjoy reasoned condembation and don't go in for fire and brimstone enough. :)


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