Packing the Court

Reviewed by Curtis E. A. Karnow

In his latest book, historian James MacGregor Burns has written a nice summary of the development of the U.S. Supreme Court and judicial review post?Marbury v. Madison. But this is sandwiched in between a weak and wretched polemic that rails against judicial review, suggesting the Court bow out of the business of evaluating the constitutionality of statutes. However, Burns has no sense of the consequences of that suggestion and offers no alternative means to ensure the Constitution is complied with (except that every governmental entity make up its own mind). And he forgets that the very history he so ably provides us demonstrates the importance of judicial review.

Burns won the Pulitzer Prize in history for his book on Franklin D. Roosevelt, Roosevelt: Soldier of Freedom. And his history here is welcome: In just over 300 pages, Packing the Court provides a well-written summary of the key cases in the development of the Court's role in constitutional adjudication?from Marbury to Dred Scott, The Slaughterhouse Cases, footnote 14 in Carolene Products (remember that one?), Lochner and its eventual repudiation, and Brown v. Board of Education. Along the way, Burns traces the influence of this or that justice and the hopes?well-founded and not?of the appointing presidents in their nominees. Additionally, we are treated to some behind-the-scenes stories on the appointments.

But Burns provides history only as backdrop to his fascination with the seemingly random impact of justices on the development of the law. He uses the image of the roulette wheel often for the unpredictability of nominees once they're on the high court. He finds it stunning that the Court may, after the switch of a single vote (a "razor's edge"), change the law. Because the justices are not elected, he concludes, there is no room in this democratic nation for having the Court adjudicate the constitutionality of its laws.

Burns tells us that the "Founders"?that wonderful monad noun?never contemplated judicial review. Despite the vast literature on the subject, Burns doesn't cite any of it, including that which suggests he is just wrong. (See THE FEDERALIST NO. 78 (Hamilton) (judges may refuse to enforce federal laws "contrary to the manifest tenor of the Constitution"); Saikrishna B. Prakash, Marbury and Its Legacy: A Symposium to Mark the 200th Anniversary of Marbury v. Madison, 72 GEO. WASH. L. REV. 354, 368 (2003); Saikrishna B. Prakash, The Origins of Judicial Review, 70 U. CHI. L. REV. 887, 952?953 (2003); Shawn Gunnarson, Using History to Reshape the Discussion of Judicial Review, 1994 B.Y.U. L. REV. 151 (1994); and Akhil Reed Amar, America's Constitution: A Biography (Random House, 2005) (judicial review "was in the air, even if not firmly on the ground" when the Constitution was adopted).)

Thus Burns mars his history with rhetoric, disparaging the "imperial" courthouse building, marking his disagreement with some (but not all) declarations of unconstitutionality as "ideologically" motivated, and routinely accusing presidents of "packing" the court when nothing more than an appointment is meant. Most unfortunately, Burns uses the tired "activist" vs. "restrained" dichotomy in his evaluation of justices, but to no justifiable end: He plainly approves of judges who "assume guardianship of the rights and liberties of Americans" but criticizes those who, like Justice Stephen J. Field, were "ideologically addicted to laissez-faire" or were hostile to "workers' rights," regardless of whether the judges overturn legislation or not.

The author likes Justice Louis D. Brandeis, but not James C. McReynolds. Chief Justice Howard Evans Hughes, appalled by New Deal legislation, is a reactionary but by contrast Chief Justice Earl Warren provided "luminous" leadership. Burns congratulates the Court in striking down the "abuses" of George W. Bush and in overruling the states' racist legislation in Brown, but he chastises the Court for holding the Missouri Compromise unconstitutional, for the "nakedly partisan decision" in Bush v. Gore, and for Justice Antonin Scalia's willingness to overturn precedent in the case.

The truth is that only one principle guides Burns's analysis: In the end, he does not actually care about the difference between the "activist" and "restrained" judge, whether a judge is an "originalist" or if he or she overturns legislation. The problem for Burns is that the Court has had the "historic role as a choke point for progressive reform." In this way, he says, the Court "has been fighting history."

Burns is entitled to his progressive agenda, and many may agree with him. But he is deeply misguided to launch an attack on judicial review on the basis of that ideology. His concluding panegyric to populism again assaults Marbury, writing that not the Court but the people have the province and duty to say what the Constitution means.

This is nonsense. Burns has not the slightest sense of what his thesis means in practice, nor how the executive and legislative branches would resolve their differences on the subject. Burns does not explain whether states too should be free to evaluate their own compliance with the supremacy clause, nor why adjudication of federal/state responsibility is permissible, but invalidating a federal law on constitutional grounds is not. Burns also does not explain his astonishing proposition that it is constitutionally acceptable to bar the minority from opposing the majority's will.

The book is good history, and it is also readable and engaging. But the account is marred by a shrill and careless polemic. Perhaps the reader may disregard this, and enjoy these chronicles of the high court anyway.

Curtis E. A. Karnow is a superior court judge in San Francisco.

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