Customer Reviews

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

5 star:		(10)
4 star:		(5)
3 star:		(2)
2 star:		(3)
1 star:		(5)

 

 

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?

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!

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.

I normally don't give one-star reviews to books unless they are willfully stupid or offensive. This one is both. The history in the book is interesting, but you can find a better history of the Supreme Court in any number of other books. The only real reason to check out the book is Burns' insane thesis, which is that the courts do not, never did, and were never intended to have the power to strike down laws and actions they deemed unconstitutional. This is a common view among the lunatic right, who by and large are cool with the idea of the "tyranny of the majority", but is extremely unusual coming from a liberal like Burns.

And it's absurd for a number of reasons, as other reviewers have pointed out. First, the Framers most certainly did intend for the courts to have the power of judicial review, as evidenced in any number of their writings from the time. A careful reading of the Constitution itself will turn up evidence for this too, as at least one other reviewer has pointed out.

But this is not the most glaring flaw. Burns somehow never considers this obvious question: What is the Constitution for, exactly, if it can be ignored by Congress and the President with impunity? Should the Bill of Rights more appropriately be called the Bill of Suggestions? A seventh grader could understand that this is flatly stupid and could not possibly have been the Framers intent.

Burns brings up good points about the process of "judicial roulette" being capricious and dangerous, but there are far, far, FAR better ways to go about reform than encouraging the President to openly defy the Supreme Court, an action that would rightly be seen as a naked power grab. (My favorite reform suggestion: a given candidate may only be appointed to a single full 18-year Supreme Court term. The terms are staggered so that a Justice is replaced every two years, in election off-years.)

The best thing I can say about this book is that it's extremely unlikely, as it stands now, that anyone would take his suggestion for open defiance of judicial review seriously.

For almost 250 pages, Professor Burns does a wonderful job of tracking the history of the Supreme Court. He shows how the Court's powers expanded over the course of more than two centuries and describes some of the more important cases. The big ones are there, of course, but he is also quite good at rooting out some lesser-known cases (for the general reader) that had a big impact on the course of the nation.

He is particularly good at brief biographies of the various judges and how they got appointed by the various presidents. Nearly everyone who has ever served on the Court gets at least a mention and even the lesser-known get a penetrating, if succinct, description of their influence. I, personally, was intrigued by some of the periods that often get short shrift in these books. The period from post-Reconstruction through the Depression and the power of the "railroad lawyers" was a real eye-opener for me.

Of course, he spends the last ten or so pages arguing that the Supreme Court has too much power and that we must end this judicial supremacy. It comes across as kind of lame, however, since he's just spent the entirety of his text showing that the judicial has reigned supreme since Marbury vs. Madison. No one has effectively challenged that for 200 years and it's not likely to happen now. Especially not in the form of his major suggestion: that the President simply stop enforcing the judgments of the Court. Can you imagine the furor (with Obama as President, to boot)? There would be civil unrest unlike anything we've seen since the Civil War. The only reasonable method is a Constitutional amendment restricting the Court, and that's not likely either.

I agree that the Supreme Court holds entirely too much power in the United States and has done for centuries but, despite what is certainly Professor Burns' desire, he doesn't really help solve the problem. Still, ignoring the last few pages, this really is a well-written, informative book on the history of the Supreme Court. I felt I learned a lot by reading it.

The goal of this book is to convince the reader that the judicial supremecy of the Supreme Court must come to an end. The author's arguments are tenuous at best and his conclusion is radical and unsupported. Only someone who already ideologically agreed with the author would agree with his arguments because his case is not convincing. While the book does give a decent synopsis of the history of the Supreme Court and the impact of the Court's major decisions on American society, it is a flawed work.

When I first began to study political science about 47 years ago, the textbook we used was by James MacGregor Burns (b. 1918) and it opened up the exciting area where ultimately I would take three degrees and teach on the college level. Subsequently I read later important books by Burns, especially his books on FDR, "The Deadlock of Democracy," and his incisive studies of presidential power. Some of his books have won the Pulitzer Prize and National Book Awards. Burns is a true heavyweight figure.

This book, however, has rightly been lambasted by a number of reviewers; generally I agree with those criticisms. But it should be clear that this is not a wretched, terrible, useless volume--rather the issue is why did Burns write it? Burns is not generally seen as a Supreme Court scholar, so that he takes on the big court so directly only adds to the mystery. His goal is clear: the Court's exercise of judicial review since 1803 has undermined government by the people. Burns argues, not too persuasively, that judicial review is not part of the Constitution and represents a purloined power. The bulk of the book is a highly selective, and at times superficial, history of the Court's decisions since the beginning, all designed to demonstrate what we already knew: the Court can be guided by political considerations (Bush v. Gore), economic philosophies (Lochner), social darwinism (income tax decisions) and other influences that can make for somewhat bizarre decisions at times. While for Burns there are pleasant intervals of more constructive decisionmaking, such as the FDR and Warren Courts, overall the American people depend on the mercy of a "judicial roulette" that determines whether a Warren, Brennan or Black sits in those nice chairs, or a Rehnquist, Thomas, or Alito does.

For Burns, we can no longer take the risk of who ends up on the Court and can wield the awesome power of judicial review. So, in his epilogue ("Ending Judicial Supremacy") he puts forward his solution. Basically, Burns -- the incisive student of executive power -- surprisingly argues that the President ought to simply declare that the Court no longer has the power to determine for the executive branch the constitutionality of congressional enactments and presumably executive actions. Moreover, this situation would continue until a constitutional amendment were passed validating judicial review. The flaws in this proposal are so immense one wonders what possessed Burns. For example, do we want to remove one of the major limitations on excessive presidental power in light of George Bush and his record on treating combatants and others during the Iraq foolishness--not to mention a president Cheney? Burns ignores the impact such a policy would have on the truly significant exercise of judicial review--over state laws. Are we to return to 50 different systems of state law, because why couldn't the states equally echo their refusal to be bound by Court decisions. What happens if there is no amendment, would this era of unbridled executive power continue indefinitely? What about 206 years of past precedent--if it is illegitimate is it all wiped out? Burns also ignores the significant constraining devices already in place, principally in the hands of Congress (e.g., control over budget, appellate jurisdiction, size of Court, etc.). He also writes off amendment as a check, although a number of them overrule unwise Court decisions.

I think Burns would have been better advised to compress his history and analyze the many existing checks on Court power, and then discuss at length his proposal and its limitations. There are a lot better general and specialized histories of the Court than this volume, despite the fact that its bibliography and notes indicate an awesome amount of research. But the center of gravity of the book is Burns' proposal and that is where he should have concentrated his attention. Keeping the Court within appropriate limits (especially the Rehnquist and Roberts courts) is a timely topic. Perhaps Burns will have launched a fresh reappraisal of this issue in this book and thereby justify its appearance.

In "Packing the Court", James MacGregor Burns is absolutely successful in providing the reader with a linear and concise history of the Supreme Court. Albeit well written, researched, and presented, the book suffers significantly from the author's knee-jerk leftist ideology, which results in some grossly anti-historical contentions.

Some examples: On page 195, Burns writes that "The Warren Court's progressive advances were indeed luminous". Luminous? Page 236: "Supreme Court justices, though, do make the rules, as the Rehnquist Court had shown to an unprecedented degree". This is either fatuity or intellectual dishonesty. Both the Warren and Burger Courts were far more activist and far more contemptuous of the Constitution than the court under Rehnquist. It wasn't, for example, during the tenure of that chief justice that a non-existent constitutional right to privacy was -- eureka! -- discovered. On page 247, "Obama's view of the Constitution was complex and nuanced". Well, as long as Burns doesn't engage in any Obama deification, that's the main thing. And then there's Burns' contention on page 253 that the "court today stands supreme and unaccountable" because of its conservative justices. Poppycock! Or, if you prefer, balderdash! Perhaps a judicious combination of the two.

The piece de resistance is Burns' remedy for a benighted and recalcitrant court (also on page 253): "Confronted by a hostile court repeatedly striking down vital progressive legislation, a president could declare that there is no place in a modern democracy for unelected judges to veto twenty-first-century laws". Needless to say (though I am saying it), Burns' solution to -- gasp and eek! -- conservatives on the court is to rip a page from the bloodstained book of the French Revolution.

Read "Packing the Court" for the history, but be prepared to shudder whenever Burns gives in to the hankering to channel Robespierre.

Historian James MacGregor Burns mostly succeeds with this engaging look at the Supreme Court from 1789 until today. Burns provides concise court history from the first man to pack the court (President George Washington) through the Presidency of a far less admirable George in the early 21st Century. Readers get a firm view of the Court's major decisions, controversies, and accompanying political events throughout U.S. history. We also see how court packing has always existed, ranging from mild to stringent, and depending on both politics and on who held the oval office. Burns devotes much attention to the sordid court actions in the decades after the Civil War, when railroad lawyer/justices mis-applied the 14th Amendment to crush the rights of workers and freed blacks. Later, pseudo-reactionary justices battled FDR's New Deal, eventually succumbing from age and retirement, and perhaps from Roosevelt's court-packing attempt. Moving ahead, the author presents the major events of the more liberal Warren Court (something of a historical aberration) and its eventual replacement by more moderate majorities. The last chapters examine the tenuous conservative majorities of today, with many 5-4 rulings. The author also examines possibilities that Congress may restrict the court's right to judicial review, undoing a precedent established in 1803 (Marbury vs. Madison).

Burns falls a bit short in that his court history is somewhat uneven, and he divides most legal disputes into liberal and conservative camps - labels that don't always fit. Additionally, the author should emphasize this simple reality: many justices decide major cases based on their personal political views, then bend, twist, invent, or misread the Constitution to justify their decision. Only tortured reasoning can explain Dred Scott and many anti-civil rights and anti-worker rulings of the late 1800's, while some liberal decisions like Roe vs. Wade rest on questionable constitutional grounds. Also, stopping the 2000 Florida recount to annoint George Bush as President was flat-out political hijacking, committed by five conservative justices that disdain federal intervention in state matters - except in this case.

Overall this is solid, readable and enlightening. Some may disagree with the liberal sentiments of this venerable author, who at this writing remains active in his early 90's. Still, the book is clearly worth your time.

This book offers an engaging history of the US thru the lens of the Supreme
Court and it's rulings, recounting the "roulette wheel" of Supreme Court
justices as they are nominated and confirmed (or not), serve their "life-time"
appointment, then retire or die -- to be replaced by whichever political
party is in power at the time. Thru it all the court has had enormous impact
on the American landscape.

In 1803 the Supreme Court, ruling on Marbury v. Madison, declared that the
Judiciary Act of 1789 was unconstitutional. This was the first time the
Supreme Court declared something "unconstitutional", establishing the idea
that courts can void legislation. That precedent snowballed over the past
200 years, solidifying the court's claim to ultimate authority to interpret the
Constitution.

But do the Supremes really have this authority? Burns claims nothing in the
Constitution says they do. His prescription to resolve this is to have a
President challenge the Court by refusing to abide by a ruling declaring
some legislation to be unconstitutional. In other words, require a constitutional
amendment to give them the authority. Intriguing.

Recommended.