By James MacGregor Burns, Penguin Press, New York, N.Y. 326 pages, $27.50
James MacGregor Burns—the 89-year old distinguished historian and Pulitzer Prize winner noted for his biographical works on Franklin D. Roosevelt and John F. Kennedy and his esteemed work on presidential power and leadership—has written “Packing the Court,” a learned, brisk attack against the U.S. Supreme Court’s power to declare acts of Congress unconstitutional.
At a time of international and domestic crises, Burns urgently maps a roadway down which President Barack Obama or a future president could drive Congress and the nation into unprecedented political disorder.
Burns foresees a president, as it were, suiting up as a kamikaze pilot who waits until the Supreme Court declares a popular act of Congress unconstitutional. At that point, the president will refuse to be bound by the judgment on the ground that, notwithstanding the more than 200-year old Marbury v. Madison, 5 U.S. (Cranch 1) 137 (1803), the Court was not empowered to declare an act of Congress unconstitutional for two reasons.
First, the Constitution, no matter how it is held up to the light, does not provide for that judicial power, and the proceedings before its ratification do not disclose that the Framers intended or even debated the grant of that power to the Court.
Second, and Burns’ most telling point, reasonable men would not place decisions of profound moral and political issues involving liberty and property in the hands of nine people who are unelected, politically selected, essentially unknown to the nation at large, appointed for life, accountable to no one, and removable only by impeachment.
Burns’ argument is unanswerable. Surely, one cannot say that because more than 200 years have passed since Marbury we are bound to live with its essentially undemocratic character another 200 years. In any case, Burns argues that if his argument has merit, a constitutional amendment would remedy the problem.
In the national uproar that would be triggered by the president’s disavowal of the Court’s judicial review, the president, as envisioned by Burns, would invite partisans of Marbury to propose an amendment to the Constitution providing for that power. The people through Congress and their state legislatures would then have the power to establish the Court’s power of judicial supremacy or to reject it. As for the president, Burns states helpfully that “he would need only to sit tight,” executing “the laws the Supreme Court had unconstitutionally vetoed.”
Burns’ claim is not a scholarly stunt. It is a broadsword swipe at our claim of a democracy. Abraham Lincoln in his inauguration address in 1861 pointed directly to it when, in the face of an agitated Chief Justice Roger B. Taney, he declared: “I do not forget the position assumed by some, that constitutional questions are to be decided by the Supreme Court.” But, said Lincoln, “if the policy of the government, upon vital questions, affecting the whole people, is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made…the people will have ceased to be their own rulers, having, to that extent, practically resigned their government, into the hands of that eminent tribunal.”
In his masterly narrative of the Supreme Court’s exercise of its supreme power of review, Burns lays that history at the Court’s door with a clarity and fairness that beggars the imagination, for a more rough hand might have been less kind.
In Dred Scott v. Sanford, 60 U.S. (19 How.) 393 (1857), for example, 50 years after Marbury, the Court for the first time exercised the power of judicial review of acts of Congress in a shocking racist tract that held that no black person could be a citizen of the United States protected by the Constitution. Blacks were declared inferior to whites to whom they were by nature subject.
And in the Reconstruction Cases, the Court emasculated the Thirteenth, Fourteenth and Fifteenth amendments. In the Slaughterhouse Cases, it rejected the Fourteenth Amendment’s nationalization of citizenship and reinstated two classes of citizenship, state and federal. Constituted of laissez-faire supporting, former railroad lawyers engaged in nailing to the ground the property rights of the wealthy, the Court left the weak and oppressed to fend for themselves.
In Plessy v. Ferguson, 163 U.S. 537 (1896), it held with a straight face that it was not discriminatory to racially segregate railroad passengers in separate cars having equal accommodations.
It recognized corporations as citizens with the privileges and immunities of citizens. It was quick to restrict the powers of governmental regulators. It lent itself in service to powerful economic interests. It opposed the income tax, requiring a constitutional amendment 20 years later. It struck a state law limiting the working hours of bakers. It struck at Congress’ attempt to condemn railroad contracts that threatened the firing of workers if they joined a union. It voided a child labor tax and Congress’ attempt to exempt labor unions from antitrust laws. Under Chief Justice William H. Taft, the Court invalidated 24 laws in 1926.
In the midst of the Great Depression, the Court repeatedly condemned legislation drawn to rescue the nation’s tens of millions from their economic and social hell. When, however, President Roosevelt lashed out at the Court with a plan to lawfully pack the Court with additional justices, the Court in one opinion after another bent at the prospect of its change. It began to dance to the music of time, suddenly finding a “fundamental right” in laborers to organize unions.
Indeed, the music of time plays well, as Burns shows. In the 1960s and the 1970s, the Warren and Burger courts found rights for criminal defendants, women and minorities, but such is the drift of music, dependent as it is on where one is standing, when the Rhenquist Court came on stage it promptly struck federal laws designed to regulate big business.
In fine, plain English prose, Burns gives us the “Cheney-Bush” Court, a chapter that alone is worth the price of the book. There, among other memorable selections, Burns shows how the Court, contrary to its principles, put its partisan hand into a presidential election, an act that will long remain in the memory of voters who one day may decide that Marbury was written on water.
Harold J. Reynolds practices law in Scarsdale, N.Y., and was the clerk of the Appellate Division, First Department, from 1985 to 1989.