Packing the Court: The Rise of Judicial Power and the Coming Crisis of the Supreme Court |  | Author: James MacGregor Burns
Publisher: Penguin Press HC, The
Category: Book
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Rating:  17 reviews
Media: Hardcover
Edition: 1St Edition
Pages: 336
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Dimensions (in): 9.3 x 6.4 x 1.2
ISBN: 1594202192
Dewey Decimal Number: 347.7326
EAN: 9781594202193
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Product Description
From renowned political theorist and Pulitzer Prize winner James MacGregor Burns, an illuminating critique of how an unstable, unaccountable, and frequently partisan Supreme Court has come to wield more power than the founding fathers ever intended
For decades, James MacGregor Burns has been one of the great masters of the study of power and leadership in America. Now he turns his eye to an institution of government that he believes has become more powerful, and more partisan, than the founding fathers ever intended-the Supreme Court. Much as we would like to believe that the Court remains aloof from ideological politics, Packing the Court reveals how often justices behave like politicians in robes.
Few Americans appreciate that the framers of the Constitution envisioned a much more limited role for the Supreme Court than it has come to occupy. In keeping with the founders' desire for balanced government, the Constitution does not grant the Supreme Court the power of judicial review-that is, the ability to veto acts of Congress and the president. Yet throughout its history, as Packing the Court details, the Supreme Court has blocked congressional laws and, as a result, often derailed progressive reform. The term "packing the court" is usually applied to FDR's failed attempt to expand the size of the Court after a conservative bench repeatedly overturned key elements of the New Deal. But Burns shows that FDR was not the only president to confront a high court that seemed bent on fighting popular mandates for change, nor was he the only one to try to manipulate the bench for political ends. Many of our most effective leaders-from Jefferson to Jackson, Lincoln to FDR- have clashed with powerful justices who refused to recognize the claims of popularly elected majorities. Burns contends that these battles have threatened the nation's welfare in the most crucial moments of our history, from the Civil War to the Great Depression-and may do so again.
Given the erratic and partisan nature of Supreme Court appointments, Burns believes we play political roulette with the Constitution with each election cycle. Now, eight years after Bush v. Gore, ideological justices have the tightest grip on the Court in recent memory. Drawing on more than two centuries of American history, Packing the Court offers a clear-eyed critique of judicial rule and a bold proposal to rein in the Supreme Court's power over the elected branches.
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Showing reviews 1-5 of 17
 A completely engrossing history of the Supreme Court July 6, 2009
D. Davidson
16 out of 23 found this review helpful
This is a completely engrossing history of the Supreme Court and its
politicization over the course of American history. Justices are
often "politicians in robes" who are unaccountable to voters, Burns
argues, and they have often clashed with the other elected branches
of government. But the Framers of the Constitution never intended for
the judicial branch of government to be "supreme" -- and they never
gave the high Court the authority to "veto" acts of Congress, as it
did when it invalidated the Missouri Compromise and precipitated the
Civil War -- and as it did again during FDR's administration, and as
it is likely to do again in the future. This is a provocative,
stimulating book, full of interesting and witty stories and anecdotes
about the Court's remarkable Justices, such as William Howard Taft.
"Packing the Court" is one of the best and most stimulating books
I've read in years. Burns lives up to his reputation as one of the
nation's foremost historians and political scientists.
233 years of Constitutional history in 261 pages September 12, 2009
Alex J. Mili Jr. (Delaware)
3 out of 7 found this review helpful
Burns is a meticulous historian who packs (pardon the pun) a wealth of historical narrative in a mere 261 pages of Packing the Court. As I read this book, it had been ten years since I took the required Constitutional Law course in the law school curriculum. So, this book was a wonderful stroll down memory lane, as it gave me the opportunity to succinctly retrace the Constitutional history of the United States from Marbury v. Madison to the present. This book has a narrative flow that reminds me of Howard Zinn's A People's History of the United States. Every student of American history knows all about FDR's efforts to pack the Court, but Burns reveals other Presidents' efforts to pack the Court of their time with Justices who share the appointing President's political ideology (to gain some control over what Burns calls "judicial roulette"). Burns writes in a non-partisan and purely academic (though not dull academic) tone. It isn't until the epilogue, wherein Burns claims that Marbury v. Madison was wrongly decided and the power of judicial review is unconstitutional, that Burns reveals his extreme leftist leanings. Notwithstanding the epilogue, I highly recommend this book to any lawyer, historian, politician or civic-minded individual.
A valuable contribution to history July 4, 2009
Phyllis Cutler (Boston, MA USA)
4 out of 9 found this review helpful
I learned a tremendous amount about the Supreme Court and its dramatic and colorful history from this book. It's very readable, written with verve and lots of humor. Burns highlights the problems that a Court of unelected, lifetime appointees can present when it opposes the democratically-elected branches of Congress. His arguments are fresh and controversial, and always interesting and challenging. I felt that I was taking a most enjoyable course in history and American politics. A first-rate read! Highly recommended to all.
Packing the Court: The Rise of Judicial Power and the Coming crisis of the Supreme Court August 21, 2009
Brian J. Mc Ginley
2 out of 6 found this review helpful
James MacGregor Burns' history of the judicial system is brilliant. The writing indicates why he is considered one of America's premier historians. From the very opening of the book to its final page, the reader is drawn into the world of the third branch of the federal government. Burns' clarity of purpose and his observations of history as it pertains to the federal government is brilliantly presented to the reader. His writing is such that one needs not be a legal scholar to understand and appreciate the machinations o the role of politics even in this supposedly non political branch of our government. The book is a tour de force. Brilliant
YOUR HAVE WRITTEN A GREAT BOOK, MR BURNS August 18, 2009
HAROLD J. REYNOLDS (SCARSDALE, NEW YORK USA)
3 out of 8 found this review helpful
James MacGregor Burns, the 89- year old distinguished historian and Pulitizer winner, noted for his biographical works on Franklin D. Roosevelt and John F. Kennedy, esteemed by many for his work on presidential power and leadership, has written Packing the Court, a learned, brisk attack against the 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 Obama or some future president could drive Congress and the nation into unprecedented political disorder. Indeed, Burns seems to savor the turbulence of our time as a transformational period in which President Obama would prove his great capacity for leadership.
Burns' unique plan foresees the 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, and this 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 unelected persons, politically selected, essentially unknown to the nation at large, appointed for life, accountable to no one, and removeable 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 action, 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. Lincoln in his Inauguration address in 1861 pointed directly to it when in the face of an agitated Chief Justice Taney, Lincoln 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." Burns, and apparently Lincoln, believed that Congress should determine the constitutionality of its acts at the risk of being held accountable by the people at the ballot box.
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, for example, fifty 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. 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 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 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 twenty years later. It struck a state law limiting the working hours of bakers. It struck at Congress's attempt to condemn railroad contracts that threatened the firing of workers if they joined a union. It voided a child labor tax and Congress's attempt to exempt labor unions from anti-trust laws. Under Chief Justice Taft, the Court invalidated twenty-four 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 1960's and the 1970's, the Warren Court and the Burger Court 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.
Showing reviews 1-5 of 17
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