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Packing the Court: The Rise of Judicial Power and the Coming Crisis of the Supreme Court
From renowned political theorist James MacGregor Burns, an incisive critique of the overreaching power of an ideological Supreme Court
For decades, Pulitzer Prize-winner James MacGregor Burns has been one of the great masters of the study of power and leadership in America. In Packing the Court , he turns his eye to the U.S. Supreme Court, an institution that he believes has become more powerful, and more partisan, than the founding fathers ever intended. In a compelling and provocative narrative, Burns reveals how the Supreme Court has served as a reactionary force in American politics at critical moments throughout the nation's history, and concludes with a bold proposal to rein in the court's power.
For decades, Pulitzer Prize-winner James MacGregor Burns has been one of the great masters of the study of power and leadership in America. In Packing the Court , he turns his eye to the U.S. Supreme Court, an institution that he believes has become more powerful, and more partisan, than the founding fathers ever intended. In a compelling and provocative narrative, Burns reveals how the Supreme Court has served as a reactionary force in American politics at critical moments throughout the nation's history, and concludes with a bold proposal to rein in the court's power.
336 pages, Paperback
First published January 1, 2009
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April 27, 2016
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.
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.
December 5, 2022
I cannot recommend this book highly enough. If you are worried about current trends in politics, this will calm you. We’ve been there before. The battle between the Court, Executive, and Legislature began with Marshall’s court; unenumerated rights and processes were at the forefront of debates constantly in the early 19th century, the decisions in Marbury (judicial review) and McCullough (national bank) plus numerous others also illustrate the battle over national v. state rights; extreme partisanship; the division of the country by sectional and class interests, east v. west, industrial and financial v. agricultural and rural; and not the least, the Electoral College and election of the President with the election of 1800, and 1824 (John Quincy Adams defeated Andrew Jackson in 1824 by garnering more electoral votes through the House of Representatives, even though Jackson originally received more popular and electoral votes.) And so it goes, with only the personalities changing. The issues have never been resolved.
The book’s title is perhaps misleading. When we think of "packing the court" FDR's attempt to add justices to the court immediately springs to mind, yet ever since Marshall's Marbury decision that shifted an enormous amount of power to the court with judicial review, presidents have used political cronyism to add their political adherents to the court. Some one term presidents, like Trump, have been very fortunate to be able to change the balance of the court in their favor by adding a large number of justices that favor their political view. Until Trump, Ronald Reagan had appointed the most justices. William Harrison, Andrew Johnson, Zachary Taylor and Jimmy Carter, all had none. Washington (obviously) and FDR each had eight, so FDR got to pack the court anyway, given his many terms in office.
I won't go on about the validity of Marshall's decision even though one would think that "originalists" would be appalled by judicial review as it was certainly unenumerated, but it does make one stop and pause to realize that unelected judges can have an enormous influence on the direction of the country for many years, an influence even contrary to those in elected office.
I was surprised to learn that following the failure of the Jefferson administration to impeach Pickering and Chase in their effort to get rid of Federalist judges, Marshall was so terrified of the prospect of impeachment that he wrote a friend proposing to mollify the Republicans by giving Congress in concert with the president the right to overturn decisions of the Supreme Court.
The whole idea of judicial review has been in or out of favor depending on whether the Court’s decisions favor your particular political position. The Warren Court was lambasted by conservatives for its unabashed use of judicial review to promote many policies conservatives argued were not in the Constitution, totally ignoring the 9th amendment and the actions of the preceding conservative courts. “Since the 1790s and especially since the Civil War, conservatives had praised the Founder’s wisdom in supposedly establishing a judiciary empowered to block rampant majorities and cheered when the Supreme Court used that authority to defend the rich and powerful. Now that the [Warren] court was, for the first time in its long history, consistently using that power to expand liberty and equality, conservatives angrily pointed out that judicial review had no basis in the Constitution.” Much of the criticism came from within the court itself, e.g. Byron White, a Kennedy appointee, who charged that the liberal majority was exploiting the power of judicial review to invent “new law and new public policy.” He neglected to mention that’s what the conservative courts had been doing for more than a century.
LBJ’s attempt to pack the court completely backfired. He persuaded (term used loosely) Arthur Goldberg to leave the court to become UN ambassador when he learned that Warren had decided to retire early because he feared a Nixon victory in the election. Johnson then tried to elevate Abe Fortas to the position of Chief Justice, but the southern Democrats’ conservative antipathy to the Warren Court’s civil rights meant he was facing a hostile Senate. That he and Johnson had been close friends, even speaking almost daily on the phone, his confirmation became impossible. See the excellent Battle For The Marble Palace: Abe Fortas, Lyndon Johnson, Earl Warren, Richard Nixon and the Forging of the Modern Supreme Court by Michael Bobelian for the sordid details.
The pendulum (see The Cycles of Constitutional Time by Jack M. Balkin) for more on the conservative/liberal cycles and how it’s affected by politicization) began to swing in the other direction and Trump’s successful packing of the court may be the harbinger of the end of the current cycle, we’ll see.
The book’s title is perhaps misleading. When we think of "packing the court" FDR's attempt to add justices to the court immediately springs to mind, yet ever since Marshall's Marbury decision that shifted an enormous amount of power to the court with judicial review, presidents have used political cronyism to add their political adherents to the court. Some one term presidents, like Trump, have been very fortunate to be able to change the balance of the court in their favor by adding a large number of justices that favor their political view. Until Trump, Ronald Reagan had appointed the most justices. William Harrison, Andrew Johnson, Zachary Taylor and Jimmy Carter, all had none. Washington (obviously) and FDR each had eight, so FDR got to pack the court anyway, given his many terms in office.
I won't go on about the validity of Marshall's decision even though one would think that "originalists" would be appalled by judicial review as it was certainly unenumerated, but it does make one stop and pause to realize that unelected judges can have an enormous influence on the direction of the country for many years, an influence even contrary to those in elected office.
I was surprised to learn that following the failure of the Jefferson administration to impeach Pickering and Chase in their effort to get rid of Federalist judges, Marshall was so terrified of the prospect of impeachment that he wrote a friend proposing to mollify the Republicans by giving Congress in concert with the president the right to overturn decisions of the Supreme Court.
The whole idea of judicial review has been in or out of favor depending on whether the Court’s decisions favor your particular political position. The Warren Court was lambasted by conservatives for its unabashed use of judicial review to promote many policies conservatives argued were not in the Constitution, totally ignoring the 9th amendment and the actions of the preceding conservative courts. “Since the 1790s and especially since the Civil War, conservatives had praised the Founder’s wisdom in supposedly establishing a judiciary empowered to block rampant majorities and cheered when the Supreme Court used that authority to defend the rich and powerful. Now that the [Warren] court was, for the first time in its long history, consistently using that power to expand liberty and equality, conservatives angrily pointed out that judicial review had no basis in the Constitution.” Much of the criticism came from within the court itself, e.g. Byron White, a Kennedy appointee, who charged that the liberal majority was exploiting the power of judicial review to invent “new law and new public policy.” He neglected to mention that’s what the conservative courts had been doing for more than a century.
LBJ’s attempt to pack the court completely backfired. He persuaded (term used loosely) Arthur Goldberg to leave the court to become UN ambassador when he learned that Warren had decided to retire early because he feared a Nixon victory in the election. Johnson then tried to elevate Abe Fortas to the position of Chief Justice, but the southern Democrats’ conservative antipathy to the Warren Court’s civil rights meant he was facing a hostile Senate. That he and Johnson had been close friends, even speaking almost daily on the phone, his confirmation became impossible. See the excellent Battle For The Marble Palace: Abe Fortas, Lyndon Johnson, Earl Warren, Richard Nixon and the Forging of the Modern Supreme Court by Michael Bobelian for the sordid details.
The pendulum (see The Cycles of Constitutional Time by Jack M. Balkin) for more on the conservative/liberal cycles and how it’s affected by politicization) began to swing in the other direction and Trump’s successful packing of the court may be the harbinger of the end of the current cycle, we’ll see.
December 14, 2019
James MacGregor Burns, known primarily for his excellent two-volume biography of Franklin Roosevelt, provides a concise yet nuanced review of Supreme Court appointments, the Justices, and many cases from the beginning of the court up until the late 2000s (this was published in 2009). Burns shows how the Court went from a less-than-equal third branch of the federal government to one of the most important areas of concern for many voters (and some presidents). In the process he shows that, over time, both political parties have engaged in attempts to “pack” the court, just not all at once, with the noteworthy exception of FDR's poorly thought-out and ill-communicated court packing plan of 1937. Considering how much attention the Supreme Court and its justices have gotten in the past few years, this book seems even more timely now.
This book is more meant to be an overview rather than an in-depth treatise. Burns gives only the briefest of biographies for most of the justices, with some only being mentioned as being nominated and confirmed to the Court. Obviously some of the Chief Justices get extra treatment, as they should, most notably John Marshall, Roger Taney, William Howard Taft, Charles Evans Hughes, and Earl Warren. Burns does a good job of showing what the specific context of the times were for most of these appointments – what pressures the president who was in office at the time was facing, what he was looking for from the justice, what the make-up of the Court was at that time, and what the political landscape was like. For example, from the end of the Civil War to the beginning of the 20th century, almost all of the chosen justices were wealthy white men who had been involved in some way or another with railroads. This made for a fundamentally conservative Court that was loathe to give any rights to workers or the labor movement.
There are a few instances where Burns seems to be a bit off-base. On page 121, writing about Taft, he writes that Theodore Roosevelt had offered him an appointment to the Court but that Taft “had his eye on a bigger prize – the presidency.” I have not read that anywhere else. In fact, I have read the opposite. Yes, Taft did turn down the appointment, but more so because he was being pushed into the presidency by both his wife and Roosevelt. Taft liked being a judge before he came to work for William McKinley and then TR, and wanted to be on the Supreme Court someday. But did not just want to be an Associate Justice; he wanted to be the Chief Justice. Roosevelt did not have that to offer him at the time, so Taft would have to wait many more years until Warren Harding obliged him.
When writing about Richard Nixon's challenge before the Supreme Court about whether or not to turn his tapes over to the Special Prosecutor, Burns writes that it was a unanimous decision by the Burger Court that Nixon needed to turn the tapes over. That is true, but one of Nixon's appointees, William Rehnquist, recused himself the case since he had previously worked in the Nixon Justice Department. That was the right thing for Rehnquist to do, and I think Burns should have noted it. A few instances such as these do not mar the book though. Burns is a solid historian and a good writer.
Burns ably documents the rise of the religious right, beginning in the 1960s but really coalescing in the 1980s under Ronald Reagan. This movement turned abortion into the number one issue as far as asking each potential nominee, and then the Senate asking the actual nominee, about her or his views on abortion. In the last few decades, we have frequently heard the phrase “litmus test” tossed around to describe how presidents now go about compiling a list of potential Supreme Court picks based on ideology. Yet, for most of the Court's history, this more or less did not exist. Yes, most presidents wanted to put someone on the bench who overall shared their views, but it seemed to be in a much broader context than we see today, where the candidate's background and prior decisions are parsed through, chopped up, shredded, then parsed through again.
It is clear which side of the political spectrum Burns falls on, however this is not meant as a partisan book. He is plenty critical of FDR's court-packing plan, and the Democratic Supreme Court Justices in the mid 19th century. He, I think, correctly notes the overtly partisan approach taken by the Rehnquist Court, in particular the hotly-debated Bush vs. Gore decision in 2000. I remember wondering at the time why the Supreme Court was stepping into something that was quite clearly a state issue (Florida and its incompetent handling of ballots). But then, all you need to do to get your answer is review the records of some of the Justices, and then you would know why.
In Burns' epilogue, he gives a remedy for making the Court more in line with what the Founding Fathers had originally envisioned for it. While I understand his point, and I do agree that the power of the Court has gotten so out of kilter with what it was supposed to be, his proposed solution, in the age of Trump, is somewhat terrifying. Page 253: “The President would announce flatly that he or she would not accept the Supreme Court's verdicts because the power of judicial emasculation was not – and never had been – in the Constitution.” Were he to be writing this book today, I highly doubt he would still want to include those words.
Grade: B+
This book is more meant to be an overview rather than an in-depth treatise. Burns gives only the briefest of biographies for most of the justices, with some only being mentioned as being nominated and confirmed to the Court. Obviously some of the Chief Justices get extra treatment, as they should, most notably John Marshall, Roger Taney, William Howard Taft, Charles Evans Hughes, and Earl Warren. Burns does a good job of showing what the specific context of the times were for most of these appointments – what pressures the president who was in office at the time was facing, what he was looking for from the justice, what the make-up of the Court was at that time, and what the political landscape was like. For example, from the end of the Civil War to the beginning of the 20th century, almost all of the chosen justices were wealthy white men who had been involved in some way or another with railroads. This made for a fundamentally conservative Court that was loathe to give any rights to workers or the labor movement.
There are a few instances where Burns seems to be a bit off-base. On page 121, writing about Taft, he writes that Theodore Roosevelt had offered him an appointment to the Court but that Taft “had his eye on a bigger prize – the presidency.” I have not read that anywhere else. In fact, I have read the opposite. Yes, Taft did turn down the appointment, but more so because he was being pushed into the presidency by both his wife and Roosevelt. Taft liked being a judge before he came to work for William McKinley and then TR, and wanted to be on the Supreme Court someday. But did not just want to be an Associate Justice; he wanted to be the Chief Justice. Roosevelt did not have that to offer him at the time, so Taft would have to wait many more years until Warren Harding obliged him.
When writing about Richard Nixon's challenge before the Supreme Court about whether or not to turn his tapes over to the Special Prosecutor, Burns writes that it was a unanimous decision by the Burger Court that Nixon needed to turn the tapes over. That is true, but one of Nixon's appointees, William Rehnquist, recused himself the case since he had previously worked in the Nixon Justice Department. That was the right thing for Rehnquist to do, and I think Burns should have noted it. A few instances such as these do not mar the book though. Burns is a solid historian and a good writer.
Burns ably documents the rise of the religious right, beginning in the 1960s but really coalescing in the 1980s under Ronald Reagan. This movement turned abortion into the number one issue as far as asking each potential nominee, and then the Senate asking the actual nominee, about her or his views on abortion. In the last few decades, we have frequently heard the phrase “litmus test” tossed around to describe how presidents now go about compiling a list of potential Supreme Court picks based on ideology. Yet, for most of the Court's history, this more or less did not exist. Yes, most presidents wanted to put someone on the bench who overall shared their views, but it seemed to be in a much broader context than we see today, where the candidate's background and prior decisions are parsed through, chopped up, shredded, then parsed through again.
It is clear which side of the political spectrum Burns falls on, however this is not meant as a partisan book. He is plenty critical of FDR's court-packing plan, and the Democratic Supreme Court Justices in the mid 19th century. He, I think, correctly notes the overtly partisan approach taken by the Rehnquist Court, in particular the hotly-debated Bush vs. Gore decision in 2000. I remember wondering at the time why the Supreme Court was stepping into something that was quite clearly a state issue (Florida and its incompetent handling of ballots). But then, all you need to do to get your answer is review the records of some of the Justices, and then you would know why.
In Burns' epilogue, he gives a remedy for making the Court more in line with what the Founding Fathers had originally envisioned for it. While I understand his point, and I do agree that the power of the Court has gotten so out of kilter with what it was supposed to be, his proposed solution, in the age of Trump, is somewhat terrifying. Page 253: “The President would announce flatly that he or she would not accept the Supreme Court's verdicts because the power of judicial emasculation was not – and never had been – in the Constitution.” Were he to be writing this book today, I highly doubt he would still want to include those words.
Grade: B+
December 4, 2015
The liberal historian of the century, James MacGregor Burns, wrote this book when he was in his 90s, tracing the history of politics on the Supreme Court and the desire of presidents to "pack" the court with justices who saw the Constitution as they did; this is nothing new, and started in the days of the Federalists and the Jeffersonians in the eighteenth century. Great chapters on how the court seized the doctrine of "judicial review" in the Marbury vs. Madison case in 1803, (something never mentioned in the Constitution) and great profiles of the various chief justices and associates throughout history, like John Marshall, Roger Taney, Earl Warren and many others. Despite a few liberal eras, Burns is critical of the conservative phases of the court, showing how the Supreme Court has usually been a "chokepoint for progressive reform" in American history and usually has sided with the powerful over the powerless. He is especially gloomy about the court's conservative turn during the years of George W. Bush, (but didn't live to see the Obama administration's two additions). At the end he proposes huge reforms to the judiciary and a rejection of judicial review. A must read for historians.
June 15, 2015
I don't agree with his premise that the Supreme Court's power to declare an act of Congress unconstitutional is not supported by the Constitution and solely a power grab by John Marshall in 1803's Marbury v. Madison. However, it is a nice history of how politics has influenced appointments and decisions throughout the years. And it makes me think even less of our current court, if such a low level is possible.
January 1, 2019
"A national reappraisal of the all-powerful court chosen by judicial roulette is crucial if American democracy is to meet the rising challenges of the twenty-first century." This is the last sentence in this book, which sums up the author's beliefs.
In this history of the court, the author shows that throughout the court's history most of the judges have been conservative which has thwarted several presidents in their efforts to advance human rights. There are details of rulings that undid the advances of black people during Reconstruction and the Jim Crow era.
It started a bit slowly, but became more interesting when he talked about Chief Justice Taney's Dred Scott decision, which denied citizenship to a slave that had lived in a free state for a period of years and was the basis for the 14th Amendment to the Constitution establishing birthright citizenship. Since I live in Maryland, I'd heard of Taney, who has a town named after him, but I hadn't known until a few years ago that he'd written the Dred Scott opinion.
When discussing Marbury vs. Madison, the case that established judicial review, the author points out that the power of the court to declare laws unconstitutional is not really spelled out in the Constitution, which is rather surprising.
This is an interesting summary of the history of the Supreme Court and well worth reading. A good way to close out 2018.
In this history of the court, the author shows that throughout the court's history most of the judges have been conservative which has thwarted several presidents in their efforts to advance human rights. There are details of rulings that undid the advances of black people during Reconstruction and the Jim Crow era.
It started a bit slowly, but became more interesting when he talked about Chief Justice Taney's Dred Scott decision, which denied citizenship to a slave that had lived in a free state for a period of years and was the basis for the 14th Amendment to the Constitution establishing birthright citizenship. Since I live in Maryland, I'd heard of Taney, who has a town named after him, but I hadn't known until a few years ago that he'd written the Dred Scott opinion.
When discussing Marbury vs. Madison, the case that established judicial review, the author points out that the power of the court to declare laws unconstitutional is not really spelled out in the Constitution, which is rather surprising.
This is an interesting summary of the history of the Supreme Court and well worth reading. A good way to close out 2018.
September 25, 2009
What a light weight book. This book was a semi-interesting read about the Supreme Court if you do not want to read anything with depth and good history. Then you hit page 250 and it is another tiresome screed on George Bush. What a waste.
September 19, 2020
2016 vreading challenge: a non-fiction and fiction about the same topic (read together with QBVII).
As an attorney, I found Packing the Court a highly interesting read not just for attorneys, but for anyone interested in the history and politics of the Supreme Court. Historian/author Burns makes no bones of his progressive bias, but you should not let his relatively mild editorializing put you off. Burns' credentials as a historian, political scientist, presidential biographer, and author are impeccable, and the history of the court and discussion of the many personalities who have made appointments and/or taken the bench over the years is soundly researched and is definitely interesting in a non-partisan way. Frankly, his open admission of his personal political leanings is more honest than authors who pretend to be objective and fail miserably.
It started a little slow for me, but as we progressed into an era where the names of famous justices and cases became familiar to me from my old Constitutional Law class, my interest quickly perked up and the story of the court became a rollicking ride down memory lane. It certainly helps that I loved ConLaw – it was one of my favorite classes in law school. While I won’t say the book is filled with legal jargon, a lot of the discussion may be easier to understand if you have some legal background. At this point, I’m sure we’ve all heard of so-called constitutional originalism, but if you’ve never heard of the phrase stare decisis, Burns isn’t going to explain it to you. It's a whirlwind of names and cases, not spending too much time on any one, but then there's a lot to cover in 200 years of history.
Most of the book concentrates on the history of the SCOTUS as a political and politics-driven entity, which it undoubtedly is. Burns ably demonstrates that contrary to much of the current public mood, the politicization of the court is not a new phenomenon at all. He also posits, and puts on some reasonably convincing evidence to show, that the current popular conception of the court as a defender of the disenfranchised, the poor, and the unpopular minority, is essentially a fraud. This is more than just pop culture: in law school we’re actively taught that one of the Supreme Court’s most important roles is to serve as a bulwark against the “tyranny of the majority” and to prevent the political branches from enacting legislation that abuses or extinguishes the inalienable rights of the disenfranchised and the unpopular minority. And we’re taught to revere that role and to consider it essential, even though studying the history of the court’s rulings clearly reveals that it’s just as political as the other branches and its rulings reflect the personal ideologies of the individual justices at any given time.
But Burns shows that in the court’s 200+ year history, it has exerted much more of its power protecting the vested interests at the expense of the marginalized or the will of the voters, and it is proven in many shameful precedents such as Dredd Scott, Plessy v. Ferguson, Bush v. Gore, and Citizens United. Burns argues the court has not only failed to curb the tyranny of the majority, it has enacted its own tyranny of the minority - a minority of five imposing its unfettered will on millions.
Burn’s underlying premise and ultimate proposal is one that will seem pretty radical to trained lawyers – Burns contends that the venerable 1803 case of Marbury v. Madison was wrong, had no legitimate constitutional basis, and should be... not “overturned,” because that implies the court would agree it has no such power, but let's say ignored and disobeyed. Every law school graduate has heard of Marbury v. Madison, and modern lawyers are taught to revere it as the cornerstone of constitutional practice – it’s the opinion that originally established the power of U.S. courts to review the actions of the other two branches, determine if they comply with the U.S. Constitution, and declare them void if they do not. Many legal scholars consider Marbury v. Madison to have simply been the first open use of a power that already existed, but Burns contends there is no actual constitutional basis for the power asserted by the court in Marbury. Burns is of the view that Marbury was a usurpation of a power the founders never allotted to the court, and its continual and profligate use for two centuries without significant challenge has rendered the court no longer part of a balanced tripartite system of government (remember we all learned about checks and balances in high school government class), but a bloated, power-hungry, hubris-filled monstrosity that has repeatedly and unjustifiably forced the will of five men in robes on the people of the United States.
Of course, this is a view that anyone who has ever heard of a Supreme Court ruling they didn’t like can find appealing on some level. After all, I'm sure that between Bush v. Gore in 2000 (the one where the next president was selected by five party-line votes), Burwell v. Hobby Lobby in 2014 (the one that allowed employers to control their employees' access to contraceptives through their health insurance) and Obergefell v. Hodges in 2015 (the gay marriage case), virtually every human being in the country has been convinced that the court has run amok and needs to be stopped somehow. Burns as an acknowledged progressive seems to be more than a little bitter about the court’s long history of being controlled by politically conservative interests and failing to stand up for the downtrodden on too many occasions. The delightfully ironic thing about Burns’ argument is that it’s the ultimate originalist construction – he posits that the power of judicial review is seen nowhere on the face of the Constitution; therefore, it doesn’t exist and the SCOTUS has been acting illegally for the last 200 years. For a progressive to suggest such an argument as a tool for reining in a too-conservative and too-powerful court really tickles my funny bone. Talk about being hoisted by your own petard!
But no matter how mad we are at the court, most of us take for granted the idea that the court generally is acting within its constitutional power when it does these things (although that has probably rarely been more harshly questioned than after Bush v. Gore). Our idea of a solution isn't to strike at the heart of the court's authority, but simply to continue the long tradition of packing the court with judges we like better in order to get more of the rulings we want. Most of us, including those of us educated in the legal system, tend to think that even if we're mad about an entire era of court rulings that are unfavorable to our personal ideology, the solution is to make sure we elect a president who will make different appointments and a Congress who will confirm those appointments, so that our time will come. Not so Burns. His ire with the court goes much further – he's mad about nearly all of a 200-year history which is mostly dominated by rulings he feels have been bad for the country, and his proposed solution is far bolder.
Let's assume for the sake of discussion that Burns is right and Marbury really was wrongly decided. It's still really hard for me to accept the idea that the SCOTUS should have NO power to put an overreaching Congress or President in its place. Especially as we sit here in 2016, watching the parade of clowns that passes for American politics these days, and looking at a voting public that might put a man like Donald Trump in the White House, my faith in the electorate is even less than my faith in the judiciary. The idea of Trump in the White House, a Republican Congress in power, and a Supreme Court with no power to even review their acts terrifies me. Of course, Burns' unspoken thesis is that the idea of that scenario with a court holding the power of review and controlled by a five-justice conservative voting bloc should scare you even more. And when a 40-year professor of history and political science suggests something, I give it more than 30 seconds of thought. And honestly, part of me would just be fascinated to see what would happen if an aligned White House and Congress did buy into Burn's idea, denounce Marbury, and order the National Guard to go out and enforce laws the Court had ruled unconstitutional. Of course, it'll never happen because we're all of us, right up to the President, too steeped in our centuries-long acceptance of the court's power.
A lot of my review here focuses on Burns' radical solution, but to be fair, it really only comes up at the very end of the book. Burns hints at it in the very beginning, and the idea of the court's many failures to actually protect the American people during its history is a quiet but pervasive theme throughout the book, but if you're really just interested in the history, it's well worth reading. Just skip the epilogue.
PS: Burns died in 2014 at age 95, not long after publishing this book in 2009, so he only got to cover the briefest glimpse of Obama's presidency and didn't get to cover either of Obama's two appointments, Justice Sotomayor and Justice Kagan. I'd dearly love to be able to get his take on the current political furor over the vacancy left by Justice Scalia's recent death.
As an attorney, I found Packing the Court a highly interesting read not just for attorneys, but for anyone interested in the history and politics of the Supreme Court. Historian/author Burns makes no bones of his progressive bias, but you should not let his relatively mild editorializing put you off. Burns' credentials as a historian, political scientist, presidential biographer, and author are impeccable, and the history of the court and discussion of the many personalities who have made appointments and/or taken the bench over the years is soundly researched and is definitely interesting in a non-partisan way. Frankly, his open admission of his personal political leanings is more honest than authors who pretend to be objective and fail miserably.
It started a little slow for me, but as we progressed into an era where the names of famous justices and cases became familiar to me from my old Constitutional Law class, my interest quickly perked up and the story of the court became a rollicking ride down memory lane. It certainly helps that I loved ConLaw – it was one of my favorite classes in law school. While I won’t say the book is filled with legal jargon, a lot of the discussion may be easier to understand if you have some legal background. At this point, I’m sure we’ve all heard of so-called constitutional originalism, but if you’ve never heard of the phrase stare decisis, Burns isn’t going to explain it to you. It's a whirlwind of names and cases, not spending too much time on any one, but then there's a lot to cover in 200 years of history.
Most of the book concentrates on the history of the SCOTUS as a political and politics-driven entity, which it undoubtedly is. Burns ably demonstrates that contrary to much of the current public mood, the politicization of the court is not a new phenomenon at all. He also posits, and puts on some reasonably convincing evidence to show, that the current popular conception of the court as a defender of the disenfranchised, the poor, and the unpopular minority, is essentially a fraud. This is more than just pop culture: in law school we’re actively taught that one of the Supreme Court’s most important roles is to serve as a bulwark against the “tyranny of the majority” and to prevent the political branches from enacting legislation that abuses or extinguishes the inalienable rights of the disenfranchised and the unpopular minority. And we’re taught to revere that role and to consider it essential, even though studying the history of the court’s rulings clearly reveals that it’s just as political as the other branches and its rulings reflect the personal ideologies of the individual justices at any given time.
But Burns shows that in the court’s 200+ year history, it has exerted much more of its power protecting the vested interests at the expense of the marginalized or the will of the voters, and it is proven in many shameful precedents such as Dredd Scott, Plessy v. Ferguson, Bush v. Gore, and Citizens United. Burns argues the court has not only failed to curb the tyranny of the majority, it has enacted its own tyranny of the minority - a minority of five imposing its unfettered will on millions.
Burn’s underlying premise and ultimate proposal is one that will seem pretty radical to trained lawyers – Burns contends that the venerable 1803 case of Marbury v. Madison was wrong, had no legitimate constitutional basis, and should be... not “overturned,” because that implies the court would agree it has no such power, but let's say ignored and disobeyed. Every law school graduate has heard of Marbury v. Madison, and modern lawyers are taught to revere it as the cornerstone of constitutional practice – it’s the opinion that originally established the power of U.S. courts to review the actions of the other two branches, determine if they comply with the U.S. Constitution, and declare them void if they do not. Many legal scholars consider Marbury v. Madison to have simply been the first open use of a power that already existed, but Burns contends there is no actual constitutional basis for the power asserted by the court in Marbury. Burns is of the view that Marbury was a usurpation of a power the founders never allotted to the court, and its continual and profligate use for two centuries without significant challenge has rendered the court no longer part of a balanced tripartite system of government (remember we all learned about checks and balances in high school government class), but a bloated, power-hungry, hubris-filled monstrosity that has repeatedly and unjustifiably forced the will of five men in robes on the people of the United States.
Of course, this is a view that anyone who has ever heard of a Supreme Court ruling they didn’t like can find appealing on some level. After all, I'm sure that between Bush v. Gore in 2000 (the one where the next president was selected by five party-line votes), Burwell v. Hobby Lobby in 2014 (the one that allowed employers to control their employees' access to contraceptives through their health insurance) and Obergefell v. Hodges in 2015 (the gay marriage case), virtually every human being in the country has been convinced that the court has run amok and needs to be stopped somehow. Burns as an acknowledged progressive seems to be more than a little bitter about the court’s long history of being controlled by politically conservative interests and failing to stand up for the downtrodden on too many occasions. The delightfully ironic thing about Burns’ argument is that it’s the ultimate originalist construction – he posits that the power of judicial review is seen nowhere on the face of the Constitution; therefore, it doesn’t exist and the SCOTUS has been acting illegally for the last 200 years. For a progressive to suggest such an argument as a tool for reining in a too-conservative and too-powerful court really tickles my funny bone. Talk about being hoisted by your own petard!
But no matter how mad we are at the court, most of us take for granted the idea that the court generally is acting within its constitutional power when it does these things (although that has probably rarely been more harshly questioned than after Bush v. Gore). Our idea of a solution isn't to strike at the heart of the court's authority, but simply to continue the long tradition of packing the court with judges we like better in order to get more of the rulings we want. Most of us, including those of us educated in the legal system, tend to think that even if we're mad about an entire era of court rulings that are unfavorable to our personal ideology, the solution is to make sure we elect a president who will make different appointments and a Congress who will confirm those appointments, so that our time will come. Not so Burns. His ire with the court goes much further – he's mad about nearly all of a 200-year history which is mostly dominated by rulings he feels have been bad for the country, and his proposed solution is far bolder.
Let's assume for the sake of discussion that Burns is right and Marbury really was wrongly decided. It's still really hard for me to accept the idea that the SCOTUS should have NO power to put an overreaching Congress or President in its place. Especially as we sit here in 2016, watching the parade of clowns that passes for American politics these days, and looking at a voting public that might put a man like Donald Trump in the White House, my faith in the electorate is even less than my faith in the judiciary. The idea of Trump in the White House, a Republican Congress in power, and a Supreme Court with no power to even review their acts terrifies me. Of course, Burns' unspoken thesis is that the idea of that scenario with a court holding the power of review and controlled by a five-justice conservative voting bloc should scare you even more. And when a 40-year professor of history and political science suggests something, I give it more than 30 seconds of thought. And honestly, part of me would just be fascinated to see what would happen if an aligned White House and Congress did buy into Burn's idea, denounce Marbury, and order the National Guard to go out and enforce laws the Court had ruled unconstitutional. Of course, it'll never happen because we're all of us, right up to the President, too steeped in our centuries-long acceptance of the court's power.
A lot of my review here focuses on Burns' radical solution, but to be fair, it really only comes up at the very end of the book. Burns hints at it in the very beginning, and the idea of the court's many failures to actually protect the American people during its history is a quiet but pervasive theme throughout the book, but if you're really just interested in the history, it's well worth reading. Just skip the epilogue.
PS: Burns died in 2014 at age 95, not long after publishing this book in 2009, so he only got to cover the briefest glimpse of Obama's presidency and didn't get to cover either of Obama's two appointments, Justice Sotomayor and Justice Kagan. I'd dearly love to be able to get his take on the current political furor over the vacancy left by Justice Scalia's recent death.
August 2, 2009
Packing the Court, by James MacGregor Burns, is a frustrating book. On the one hand, it is a very readable, often fascinating history of the Justices of the Supreme Court, written from the perspective of a researcher interested in how the uneven time frame Justices get selected in affect the court and the other branches' response to the sometime out of touch Court. It has a great deal of interesting information about the Justices, the weird process that got them too the court, and the intricate relationship between the court, the Congress and the issues of the day. The discussions of Bush v. Gore, of the Roberts Court, and of Howard Taft and his full fronted assault on working Americans were particulalrly well done and interesting. Burns' history also does a very good job of demonstrating that there has never been anything other than an activist Court in our history. If that was all this book was about, then I would recommend it heartily. But that is not what Burns wants his book to be about. He wants his book to be a devastating attack on the very concept of judicial review and the Court's place in American politics. Unfortunately for Burns, he doesn't make that case with anything close to the skill with which he tells the history of the Court.
It is a very interesting look at the the history of the Court told well and from a point of view not often heard. It also has some good arguments and an interesting thesis. But those arguments aren't fully fleshed out and the thesis isn't proven so much as asserted. Packing the Court is a rare beast: a political polemic too heavy on the history and too light on the polemic.
It is a very interesting look at the the history of the Court told well and from a point of view not often heard. It also has some good arguments and an interesting thesis. But those arguments aren't fully fleshed out and the thesis isn't proven so much as asserted. Packing the Court is a rare beast: a political polemic too heavy on the history and too light on the polemic.
May 27, 2020
It should come as no surprise that each presidential administration since the country’s founding has tried to pack the supreme court (to a greater or lesser degree) with ideologically like-minded jurists. It has only become worse in recent decades as conservative judges are replaced with ever more radical ideologues who, particularly under the Robert’s court, have overturned precedent after precedent with narrow 5/4 decisions, ruling against the public in favor of corporations and the wealthy with predictable regularity.
The reason politicians care so deeply about the make-up of the court is, of course, the incredible amount of power it wields. It has authority to pick and choose which cases to consider, to rule as narrowly or broadly as it pleases and to strike down any law as unconstitutional. In effect … the supreme court is an unelected body with the power to dictate public policy. If that weren’t bad enough, citizens have no recourse whatsoever for reconsideration of its decisions, no matter how egregious.
The problem is, the founders NEVER intended the court to possess such authority. Nowhere in the constitution does is state that the court is the final arbiter of constitutionality. This was a later interpretation by Chief Justice John Marshall in the landmark Marbury versus Madison case in which Marshall declared the court had to power of judicial review - i.e. the ability of the Supreme Court to limit Congressional power by declaring legislation unconstitutional. Subsequent decisions by the court have reinforced this precedent.
The founders envisioned the court as a co-equal branch of government that functioned as part of a system of checks and balances. True power was intended to reside with the voting public. Instead, we have a supreme court packed with unelected, lifetime, partisan political appointees, who are entirely unaccountable to the public they purportedly serve. This wouldn’t be so bad if the judges showed judicial restraint, limiting their decisions to ‘calling balls and strikes’ as John Roberts notoriously (and disingenuously) stated during his confirmation hearing. But the court has a history of judicial activism, making sweeping decisions that result in setting national policy. It also has a long history of making stunningly bad decisions (Bush v. Gore anyone?).
Packing the Court: The Rise of Judicial Power and the Coming Crisis of the Supreme Court is a history of the court and its landmark decisions, particularly as they apply to the making of national policy and in the expansion of the court’s power. The book is by James MacGregor Burns an American historian and political scientist and would serve as a good introductory course on constitutional law. In the book’s final chapter Burns calls for lawmakers to curb the courts power through a constitutional amendment to strip it of its power of judicial review in an effort to return it to the ‘originalist’ role that the founders intended.
The reason politicians care so deeply about the make-up of the court is, of course, the incredible amount of power it wields. It has authority to pick and choose which cases to consider, to rule as narrowly or broadly as it pleases and to strike down any law as unconstitutional. In effect … the supreme court is an unelected body with the power to dictate public policy. If that weren’t bad enough, citizens have no recourse whatsoever for reconsideration of its decisions, no matter how egregious.
The problem is, the founders NEVER intended the court to possess such authority. Nowhere in the constitution does is state that the court is the final arbiter of constitutionality. This was a later interpretation by Chief Justice John Marshall in the landmark Marbury versus Madison case in which Marshall declared the court had to power of judicial review - i.e. the ability of the Supreme Court to limit Congressional power by declaring legislation unconstitutional. Subsequent decisions by the court have reinforced this precedent.
The founders envisioned the court as a co-equal branch of government that functioned as part of a system of checks and balances. True power was intended to reside with the voting public. Instead, we have a supreme court packed with unelected, lifetime, partisan political appointees, who are entirely unaccountable to the public they purportedly serve. This wouldn’t be so bad if the judges showed judicial restraint, limiting their decisions to ‘calling balls and strikes’ as John Roberts notoriously (and disingenuously) stated during his confirmation hearing. But the court has a history of judicial activism, making sweeping decisions that result in setting national policy. It also has a long history of making stunningly bad decisions (Bush v. Gore anyone?).
Packing the Court: The Rise of Judicial Power and the Coming Crisis of the Supreme Court is a history of the court and its landmark decisions, particularly as they apply to the making of national policy and in the expansion of the court’s power. The book is by James MacGregor Burns an American historian and political scientist and would serve as a good introductory course on constitutional law. In the book’s final chapter Burns calls for lawmakers to curb the courts power through a constitutional amendment to strip it of its power of judicial review in an effort to return it to the ‘originalist’ role that the founders intended.
November 9, 2020
With all the talk of what will happen in the Biden presidency with the Supreme Court, I found this a fascinating read. I got really familiar with the supreme court in a communications law course I took as part of my journalism degree. It nearly convinced me to go to law school. I saw the court as a protector of individual liberties and relatively impartial. Here, Burns blow that idea up.
He paints a history of the court from its founding to 2009 walking through all the court picks and their politics. What comes into focus is that while the court in recent years (say since the 70's) has been somewhat a protector of individual rights, it's much more often been a tool of minority and corporate interests and there's no reason to believe that won't return. Even as the democrat Obama was taking office, he advocates dismantling some of the powers the court has, which are taken for granted but enshrined nowhere in the constitution.
He paints a history of the court from its founding to 2009 walking through all the court picks and their politics. What comes into focus is that while the court in recent years (say since the 70's) has been somewhat a protector of individual rights, it's much more often been a tool of minority and corporate interests and there's no reason to believe that won't return. Even as the democrat Obama was taking office, he advocates dismantling some of the powers the court has, which are taken for granted but enshrined nowhere in the constitution.
July 28, 2025
This book answered questions I didn’t know I had about the Supreme Court. Far from being an objective embodiment of the Constitution, Burns shows that the court has always been a biased political tool. This is a revealing historical tour of the philosophy, makeup, and political bent of the nation’s highest judiciary. Readers will notice that Burns’s own biases about what direction the court should lean certainly come through near the end as he speaks contemptuously about the George W. Bush court. All in all though, a fascinating read.
July 25, 2019
halfway. too dry. DNF
August 27, 2021
It was an instructive book, but I was left wondering what the real restrictions to court packing are.
September 23, 2012
This is an intentionally opinionated history of the Supreme Court of the United States of America.
Burns brings his considerable historical knowledge and literary skill to bear on what has sometimes been the most respected institution in American government, and at other times derided as partisan and backward-looking. As he traces its development from the words in the Constitution and the brilliant, energetic, ambitious, and forward-thinking John Marshall, through to today's Roberts Court, it becomes clear that Burns considers the latter view to be correct for most of the Court's history.
Certain bad Court decisions, such as Dred Scott, are well known, and I have a strong interest in American history. Despite that, I found much of the surprisingly sordid history of Court decisions turning the meaning even of the 14th and 15th Amendments on their heads, inventing a distinction between state and national citizenship, and applying "due process" and other procedural and substantive rights almost entirely to property and the regulation of economic activity, and reducing civil rights of individuals to almost nothing, to be a revelation.
The interplay between politics and the Court, and the persistent conservatism of the Court over decades and generations, even in the face of true national crises like the Great Depression, is disturbing and disheartening. When he reaches the Warren Court, Burns is in some respects downright gleeful, but also aware that it is the flip side of the intransigent Court that opposed Franklin Roosevelt's efforts to create legislation and take action that would alleviate and reverse the Great Depression. In both eras, the personalities and political views of the Justices, rather than the myth of dispassionate, high-minded jurisprudence,
As we proceed forward from the Warren Court to the current Roberts Court, once again a conservative Court with an easy willingness to strike down as "unconstitutional" progressive legislation, Burns begins to lay out the polemical purpose of this book. He argues that the power of the Court to strike down legislation and to be the final arbiter of Constitutionality in all things, is unfounded in the Constitution or any supporting evidence of the intentions of the Founders, and that it has done more harm than good, threatening the foundations of democracy. His proposed solutions will sound radical to many, and certainly don't entirely agree with him myself. Nevertheless, even as a polemicist, Burns remains calm, rational, clear, and thoughtful, and this is an argument well worth reading and considering.
Recommended.
I borrowed this book from the library.
Burns brings his considerable historical knowledge and literary skill to bear on what has sometimes been the most respected institution in American government, and at other times derided as partisan and backward-looking. As he traces its development from the words in the Constitution and the brilliant, energetic, ambitious, and forward-thinking John Marshall, through to today's Roberts Court, it becomes clear that Burns considers the latter view to be correct for most of the Court's history.
Certain bad Court decisions, such as Dred Scott, are well known, and I have a strong interest in American history. Despite that, I found much of the surprisingly sordid history of Court decisions turning the meaning even of the 14th and 15th Amendments on their heads, inventing a distinction between state and national citizenship, and applying "due process" and other procedural and substantive rights almost entirely to property and the regulation of economic activity, and reducing civil rights of individuals to almost nothing, to be a revelation.
The interplay between politics and the Court, and the persistent conservatism of the Court over decades and generations, even in the face of true national crises like the Great Depression, is disturbing and disheartening. When he reaches the Warren Court, Burns is in some respects downright gleeful, but also aware that it is the flip side of the intransigent Court that opposed Franklin Roosevelt's efforts to create legislation and take action that would alleviate and reverse the Great Depression. In both eras, the personalities and political views of the Justices, rather than the myth of dispassionate, high-minded jurisprudence,
As we proceed forward from the Warren Court to the current Roberts Court, once again a conservative Court with an easy willingness to strike down as "unconstitutional" progressive legislation, Burns begins to lay out the polemical purpose of this book. He argues that the power of the Court to strike down legislation and to be the final arbiter of Constitutionality in all things, is unfounded in the Constitution or any supporting evidence of the intentions of the Founders, and that it has done more harm than good, threatening the foundations of democracy. His proposed solutions will sound radical to many, and certainly don't entirely agree with him myself. Nevertheless, even as a polemicist, Burns remains calm, rational, clear, and thoughtful, and this is an argument well worth reading and considering.
Recommended.
I borrowed this book from the library.
September 13, 2011
An interesting look at the problem of the growing power of the Supreme Court, beyond the framework of the Constitution. Burns, an emminent historian, brings the reader rigth through the history of the Supreme Court, from its frameing to the present. He is concerned about the growing power of the court, the one democratic element of the American government system, and its power to determine policy, law, and direction of the country. Clearly, the framers did not intend for such a powerful judicial institution, as Burns documents from the Constitutional Convention records. What is suprpising is Burn, whose liberal bias is evident (though I had to wonder if the reader in this audio book gave teh book a greater slant than the author intended, but Burn's words are his words alone) is greatly concerned by the power of the Court, but particuarly under Republican or conservative guidance. FDR and Obama clearly deserve better than the lousy courts they had to deal with, according to Burns. If it wasn't for the reactionarly conservative strain of the legal demigods, we would have had a sweeter, nicer, happier world. According to Burns, Obama is the only president to actually study the Constitution, after all he was a professor of Constitutional Law! (Actually, he was an adjunct faculty member, and by acounts of the full time faculty, he was lousy at that. And some how as president of the Harvard Law Review, he seems not have written a singular scholarly article on the Constitution. Strange!!)
Though I disagree with Burn's biased interpretation of the history of the Court, I found myself readily agreeing with him that the impact of the Court's ruling, on policy, law, our economy, etc, needs to be curtailed. Their impact is way to large. They fail to understand how a singular court ruling, precedent, changes our entire culture. It is one thing to declare a law or policy as unconstitutional, it is another to realter the social landscape as they do. But, like Burns, I don't know if anyone has the best idea of how too do that.
December 5, 2012
This book was better than I expected. My conclusion: just like Von Clausevitz once said "war is the continuance of politics by other means", I content judicial review is the continuance of politics by other means.
This book deeply explores the problems of when politics invade law and the other way around. It is interesting that one of the most respected institution in world, use judicial review for goals other than to make our constitutional democracy works, except in especific times of the modern era. In fact, now days, the court becomes this unelected field for democatic discussions and might end up by striking a law as unconstitutional or upholding it.
It is clear that, to understand the present court (Roberts) we must understand Stone (during the FDR'S four justices: black, roberts, black and douglas), warren, burgers and rehnquiest courts. To know what the future will be we must understand the past.
The ony thing I dont like about the book is the non-time sequencial of the author's writing. For awhile gets confusing to follow the timeline of the authors argumet. Thats why 4/5 is appropiate.
Another thing that called my atention is the author's proposal to make judicial review more democratic. An appealing and persuasive argument but frighting in a democratic way.
Love it!
This book deeply explores the problems of when politics invade law and the other way around. It is interesting that one of the most respected institution in world, use judicial review for goals other than to make our constitutional democracy works, except in especific times of the modern era. In fact, now days, the court becomes this unelected field for democatic discussions and might end up by striking a law as unconstitutional or upholding it.
It is clear that, to understand the present court (Roberts) we must understand Stone (during the FDR'S four justices: black, roberts, black and douglas), warren, burgers and rehnquiest courts. To know what the future will be we must understand the past.
The ony thing I dont like about the book is the non-time sequencial of the author's writing. For awhile gets confusing to follow the timeline of the authors argumet. Thats why 4/5 is appropiate.
Another thing that called my atention is the author's proposal to make judicial review more democratic. An appealing and persuasive argument but frighting in a democratic way.
Love it!
May 19, 2011
"'If you have no doubt of your premises or your power and want a certain result with all your heart you naturally express your wishes in law and sweep away all opposition. But when men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas == that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out. That at any rate is the theory of our Constitution.'" (quoting Oliver Wendell Homes dissenting in Abrams, 130)
"'Even if he were mediocre, there are a lot of mediocre judges and people and lawyers. They are entitled to a little representation, aren't they, and a little chance? We can't have all Brendeises and Frankfurters and Cardozos and stuff like that there.'" (quoting Roman Hruska on G. Harrold Carswell's nomination, 204)
"'Even if he were mediocre, there are a lot of mediocre judges and people and lawyers. They are entitled to a little representation, aren't they, and a little chance? We can't have all Brendeises and Frankfurters and Cardozos and stuff like that there.'" (quoting Roman Hruska on G. Harrold Carswell's nomination, 204)
June 30, 2014
The first part of the book was very informative...a well written history of the evolution of Supreme Court. Starting at the Reagan years, however, it became increasingly partisan, culminating in a ridiculously biased viewpoint of the George W. Bush years. The culmination was when he complained in the chapter on Bush's appointments that the Justices were too eager to side with Bush, and then complains in the last chapter that the same Justices ignored the electoral "mandate" of Obama.... While the entire book is laced with liberal bias, it does not become too annoying until the last 2-4 chapters. The finale is a mini-dissertation on emasculating the judiciary and allowing the President and especially Congress to police themselves as to the Constitutionality of the law....so much for checks and balances!
August 22, 2014
Packing the Court is James MacGregor Burns' penetrating look at SCOTUS. For most of our history the Court has been a reactionary and unaccountable force in American life. Sound history.
Burns' treatise is grounded on John Marshall's breathtaking assertion of the court's role as final arbitrator of constitutional review. The fact that no such power exists in the Constitution seems not to bother "originalists" like Antonin Scalia. They just made it (the assertion of the power to overturn duly passed laws) up. The damage done by the court over much of the Republic's history (Dred Scott, Plessy, Korematsu, Bush v Gore, Heller) has been jaw dropping. It is time to assert balance and accountability to these nine justices. Term limits and cameras in the court at least.
Burns' treatise is grounded on John Marshall's breathtaking assertion of the court's role as final arbitrator of constitutional review. The fact that no such power exists in the Constitution seems not to bother "originalists" like Antonin Scalia. They just made it (the assertion of the power to overturn duly passed laws) up. The damage done by the court over much of the Republic's history (Dred Scott, Plessy, Korematsu, Bush v Gore, Heller) has been jaw dropping. It is time to assert balance and accountability to these nine justices. Term limits and cameras in the court at least.
November 20, 2009
Burns hardly portends to objectivity in this book. It's more of a lefty screed against the general conservative trend of the Supreme Court. Of course, since I agree with most of his views, I didn't mind that much.
Outside of the historical overview of the court that takes up most of the book, he makes a political claim that the judical review instituted in Marbury v. Madison should be challenged by a strong executive. Ironically, he rails against the Bush administration for promoting a strong executive at the expense of the rule of law and applauds the Supreme Court for standing against the administration in cases like Hamdi v. Rumsfeld or Hamdam v. Rumsfeld.
Outside of the historical overview of the court that takes up most of the book, he makes a political claim that the judical review instituted in Marbury v. Madison should be challenged by a strong executive. Ironically, he rails against the Bush administration for promoting a strong executive at the expense of the rule of law and applauds the Supreme Court for standing against the administration in cases like Hamdi v. Rumsfeld or Hamdam v. Rumsfeld.
August 3, 2010
An interesting historical review showing that the Supreme Court has always acted in a political and partisan fashion, and that the threatened court packing in FDR's time was nothing new. I had never realized that the Court had been expanded and contracted numerous times before then, to achieve political ends.
What I did not expect was that there was very little about "the coming crisis" - a few pages with a suggestion to curb the power of the Supremes.
Overall, though, I liked it and learned a fair amount - so, viewed as a history of the Supreme Court as a political player, it was well worth reading.
What I did not expect was that there was very little about "the coming crisis" - a few pages with a suggestion to curb the power of the Supremes.
Overall, though, I liked it and learned a fair amount - so, viewed as a history of the Supreme Court as a political player, it was well worth reading.
August 8, 2010
Founding Fathers were concerned about giving and taking power to the electorate when they wrote the Constitution. As patricians, they were fearful of mob rule so therefore included various checks and balances to power. Supreme Court license to overrule acts of Congress wasn’t granted. That was left to an early decision by the Court itself to decide and probably a wise one if limited. But sometimes the historically politically active conservative Court has overruled economic and social progress on a wholesale basis. Oh to have had this book available as I prepared for grad school exams in constitutional law many years ago. Although I passed, I think my answers could have been more incisive.
August 28, 2009
Nice history of the Court and its inherently political situation. Particularly good in showing how misleading and dishonest the political terms "activist judges" and "originalism" are as used by liberals and conservatives. Wish he would have expounded on his proposal at the end--he spends mere pages calling for a revolution, which was interesting but really needed several more chapters to properly unpack.
May 31, 2010
Some good information, but this volume was too opinionated for my opinion. Burns may be a Pulitzer Prize-winning historian, but a more even-keeled approach to the history of the Supreme Court would have made this more enoyable for me. Still, it does cover the heavy-hitters in judicial history (Marshall, Taney, Warren, Burger, Hughes, Frankfurter) well. And, of course, it's not favorable at all to the recent court.
August 17, 2010
well written review of the Court since its inception with emphasis on its role in judicial review and its very strong influence by political forces. His final chapter is a strong contention for what seems to me an impossible suggestion: to reverse the right of the court to rule on the constitutionality of new legislation. It seems to me that is its main function.
very easy read and informative
very easy read and informative
May 28, 2010
While a thorough and well-written history of the Supreme Court, the last chapter is a bit of a diatribe that seems oddly disjointed, as if it was added in a weekend after discussing the topic of Judicial Review with a salon of counterparts. Overall a fine text, as I intend to assign it forr summer reading for all rising Juniors in my department.
May 20, 2013
An excellent history of the Supreme Court, with an emphasis on the selection process, and the way this was used over the years to skew the court one way or the other. Burns takes sides, but this primarily affects his tone, not the content. I hadn’t realized how much railroad interests controlled the court for many decades. The book was a real eye-opener in many ways.
August 17, 2015
The author examines the history of SCOTUS and its impact on politics from the foundation of the Court to now. The author challenges common impressions of the Court, history of the Court, and constitutional function of the Court. While I did not always agree, I found the book definitely worth reading and highly thought provoking.
September 7, 2009
This is a clear, and passionate, history of the Supreme Court and its mostly anti-progressive, anti-democratic tendencies. Some great stuff on the dangers of pure theory versus experience-based practice. Flawed by a little too much on Burns' previous theories of transformational leadership
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