Packing the Court: The Rise of Judicial Power and the Coming Crisis of the Supreme Court [Hardcover]

James MacGregor Burns (Author)

Book Description

ISBN-10: 1594202192 | ISBN-13: 978-1594202193 | Publication Date: June 25, 2009 | Edition: 1St Edition

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.

Editorial Reviews

From Publishers Weekly

Pulitzer-winning historian Burns gives a brisk, readable tour of the history of the appointment of Supreme Court justices since 1789. In this respect, the book is fresh and compelling. But Burns (Running Alone) has another aim. Particularly aggrieved by the Rehnquist and Roberts courts, he argues that every president since Washington has sought to fill the Court with justices who think as he does; that judicial review is unconstitutional; that the unelected Court has never been politically accountable to the American people;and that a courageous president (like Barack Obama, he suggests) should simply announce that, like Andrew Jackson, he won't abide by Supreme Court rulings that invalidate laws enacted by Congress and signed by him. Known for the liberal flags he flies, Burns runs up the radical pennant here. There's no evidence that the American people are as aggrieved over the Court as Burns is. And the term packing should be reserved, as until now it has been, for extreme manipulative efforts like FDR's. This is a terrific little book—save for its politics run amok. (June)
Copyright © Reed Business Information, a division of Reed Elsevier Inc. All rights reserved.

Review

"Here a legendary American scholar has brought us an irresistible gift-a brilliant, compelling and consistently surprising history of the Supreme Court's role in American life. Like all of Burns's work, Packing the Court looks backward and forward, drawing crucial lessons from the past that should guide every American leader and citizen today. This important volume is basic and essential and should be vigorously read and debated by all of us."
-Michael Beschloss

"Provocative and timely... Mr. Burns uses his intimate knowledge of America's past to situate judicial rulings within a political and social context, even as he dissects the practical consequences of particular decisions."
-Michiko Kakutani, The New York Times

"Packing the Court is just what you would expect of Burns: a readable and accessible history, full of memorable details... I was engaged, entertained and provoked by this surprising and energetic history of the Court."
-Jeffrey Rosen, The Washington Post

"In graceful prose, Burns takes us on a quick historical tour of many famous and infamous decisions, demonstrating how the court, frequently imagined as the protector of the weak and powerless, has more often been the friend of the powerful and a 'a choke point for progressive reforms,' contemptuous of popular legislation."
-Kirkus Reviews

"The singular James MacGregor Burns never disappoints, not with any of his more than two dozen books. In Packing the Court he continues his unbroken streak, with yet another volume on the American experience, this one focused on the trajectory of the Supreme Court. The book is past and present at its best-a rigorous and revealing recounting of this most elusive and even reclusive of the three branches of government. Burns concludes with a clear caution: that failure to reform the nation's highest court risks having it deviate still further from what the Founders originally intended."
-Barbara Kellerman, author of Bad Leadership and Followership

"Provocative and well-written."
-Clive Crook, TheAtlantic.com

See all Editorial Reviews

Product Details

• Hardcover: 336 pages
• Publisher: Penguin Press HC, The; 1St Edition edition (June 25, 2009)
• Language: English
• ISBN-10: 1594202192
• ISBN-13: 978-1594202193
• Product Dimensions: 9.3 x 6.4 x 1.2 inches
• Shipping Weight: 1.2 pounds (View shipping rates and policies)
• Average Customer Review: 3.5 out of 5 stars  See all reviews (25 customer reviews)
• Amazon Best Sellers Rank: #767,200 in Books (See Top 100 in Books)

More About the Author

Discover books, learn about writers, read author blogs, and more.

Customer Reviews

Most Helpful Customer Reviews

102 of 129 people found the following review helpful:

1.0 out of 5 stars second-rate history and first-rate lunacy, June 30, 2009

By 

Peter Irons (greenville ca usa) - See all my reviews
(REAL NAME)   

This review is from: Packing the Court: The Rise of Judicial Power and the Coming Crisis of the Supreme Court (Hardcover)

Several months ago, this book's publicist sent me a pre-publication copy, soliciting a "blurb" for the back-cover jacket and advertising, at the request (she said) of Professor Burns. Frankly, I didn't know (until I consulted Wikipedia) that Burns, at the age of ninety, was still alive and had written his twenty-somethingth book, his first on the Supreme Court. On reading the book, I was flattered to discover that Burns had cited and quoted from four of my own books on Supreme Court history.

However, I declined the request for a blurb, for two reasons. First, the twelve chapters on the history of presidential Supreme Court nominations, from George Washington to George W. Bush, were entirely derivative and added little, if anything, to what previous scholars (most notably, Henry Abraham of the University of Virginia, in his book, Justices and Presidents) had already written on this topic. Like Abraham and other scholars in this field, Burns notes that presidents most often nominate justices who (they hope) will reflect and follow their political ideologies (Sonia Sotomayor being the latest example). Burns also notes that presidents sometimes guess wrong: FDR with Felix Frankfurter, Eisenhower with Earl Warren and William Brennan ("my two biggest mistakes"), and George H. W. Bush with David Souter. There's nothing new in Burns's recounting of this history.

My second reason for declining the blurb request stems from the book's thirteen-page epilogue, entitled "The End of Judicial Supremacy?" I was actually not surprised by what Burns wrote in his epilogue, since his previous books (including biographies of FDR and JFK) championed presidential "leadership" of the liberal variety (I happen to share Burns's politics, but not his prescription in this book). Burns puts this prescription in two sentences: "Confronted by a hostile court repeatedly striking down progressive legislation, a president could declare that there is no place in a modern democracy for unelected judges to veto twenty-first-century laws. The president would announce flatly that he would not accept the Supreme Court's verdicts because the power of judicial emasculation of legislation was not--and never had been--in the Constitution." Burns proposes a constitutional amendment (whose wording he does not elucidate) that would allow presidents to invalidate Supreme Court decisions with which they disagree.

Think about this! Eisenhower could have struck down Brown v. Board of Education, Nixon could have struck down Roe v. Wade, and George W. Bush could have struck down the Court's "enemy combatant" rulings. Burns would probably reply that he doesn't mean to go this far, but that's my reading of his radical proposal for presidential autocracy. Of course, this won't happen, but Burns's proposal itself is grounds for dismissing his book as second-rate history and first-rate lunacy. If Burns had his way, the Constitution's checks and balances, and the separation of powers, would disappear.

Note: I am editing this review on July 6 to alert readers of other reviews that the one posted on July 5 by Stewart Burns was written by James Macgregor Burns's son, who did not disclose that fact in his review. I think it's unethical and inappropriate for family members to review each other's books, and to conceal that relationship. I don't know if JM Burns solicited his son's review, but even if he didn't, it's bad form. Does anyone else agree with me? And does Stewart want to explain why he didn't reveal his familial tie?

5 of 5 people found the following review helpful:

2.0 out of 5 stars Less than I expected!, March 7, 2010

By 

PST "A Reader from Germany" (Eislingen Deutschland) - See all my reviews

This review is from: Packing the Court: The Rise of Judicial Power and the Coming Crisis of the Supreme Court (Hardcover)

The book is like a history of the Supreme Court. It is well written, easy and interesting to read.
However, I feel, that it does not really tackle the issues properly, it is written too much from the viewpoint of an elderly liberal ( I consider myself a liberal, too!):

If a liberal court decides against a conservative administration, this is good,
If a conservative court decides against a liberal administration, this is bad!
No reason given!

No consideration is given to the fact, that conservative administrations were also elected by the people (with the possible exception of the Bush / Gore contest...)

The book does not give the logic and consistency in the argument, which I hade expected from an eminent scholar like Prof. Burns!

This is a shame, and does not help the liberal cause!

21 of 30 people found the following review helpful:

5.0 out of 5 stars A completely engrossing history of the Supreme Court, July 6, 2009

By 

D. Davidson - See all my reviews
(REAL NAME)   

This review is from: Packing the Court: The Rise of Judicial Power and the Coming Crisis of the Supreme Court (Hardcover)

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.