James MacGregor Burns - Packing the Court: The Rise of Judicial Power and the Coming Crisis of the Supreme Court

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Table of Contents

ALSO BY JAMES MACGREGOR BURNS

Roosevelt: The Lion and the Fox
John Kennedy: A Political Profile
Deadlock of Democracy: Four-Party Politics in America
Presidential Government: The Crucible of Leadership
Roosevelt: The Soldier of Freedom
Leadership
The Vineyard of Liberty
The Workshop of Democracy
The Crosswinds of Freedom
A Peoples Charter: The Pursuit of Rights in America
(with Stewart Burns)
The Three Roosevelts (with Susan Dunn)
Transforming Leadership: A New Pursuit of Happiness
George Washington (with Susan Dunn)
Running Alone: Presidential Leadership from JFK to Bush II

FOR DAVID, STEWART, DEBORAH, ANTONIA

PROLOGUE

ONE DAY in February 1937, a fellow student at Williams College burst into my room holding a copy of the local newspaper. At first, I thought the banner headline trumpeted another crisis in Europe, but instead it was sensational news from Washington. President Franklin Roosevelt had just handed Congress a controversial proposal to pack the Supreme Court by enabling him to name up to six new justices, expanding the courts size to fifteen. As more classmates flocked into my room, arguments erupted over the bill. Most of us with scholarships vehemently backed FDR, just as we had cheered his landslide reelection a few months before. We derided the Roosevelt haters in the more affluent Gold Coast dorm next door.

We watched the ensuing political fight as closely as we would the World Series. We were sorry, most of us, when the court-packing bill went down to defeat in Congress. We were also puzzled. FDR made his proposal to change the Supreme Court because the conservative justices had killed one New Deal law after another, blocking the presidents efforts to lift the country out of the Great Depression. How could these justices, most of whom had been appointed to the Supreme Court decades earlier, paralyze a government twice elected by a huge majority of Americans and halt what seemed to us the march of progress? Where did the courts power to veto laws passed by Congress and signed by the president come from? A look at the Constitutions Article III, where the judicial power is set out, revealed no mention of a Supreme Court veto over the elected branches.

How could this be? We are all taught in school about the separation of powers, the checks and balances that give some veto power to the president and the houses of Congress. Could the great political and philosophical leaders who wrote the Constitution have wanted a judicial vetoa judicial review of legislationwithout stating it? The authors of the Constitution were meticulous men, many of them lawyers. They knew exactly what they were doingand not doing.

There is no mystery. The Framers did not include a judicial veto in the Constitution because they did not want it. They would not grant that supremacy over the elected branches to a nonelected judiciary.

The Supreme Court instead acquired its power through a brilliant political coup at the hands of Chief Justice John Marshall in 1803. It was Marshall who declared that it was the exclusive duty of the Supreme Courtnot Congress and not the presidentto say what the law is. The Constitution, Marshall insisted, was nothing more and nothing less than what a majority of the justices said it was. Building on Marshalls dictum, the Supreme Court has, over the last two centuries, made itself the center of constitutional action. In doing so, it has distorted the intricate checks and balances the Framers believed were essential to the success of the American experiment.

As the ultimate and unappealable arbiters of the Constitution, the justices of the Supreme Court have become far more than the referees in constitutional disputes that the Framers intended. They have gone beyond interpreting the rulesthey have come to create them. From John Marshall to John Roberts, as the court has evolved from its makeshift quarters in New York City, the nations first capital, to its imperial courthouse in Washington, D.C., the justices have so successfully enlarged and consolidated the power of judicial review that they have become, in effect and often explicitly, lawgivers. And unlike the president and members of Congress, the policy-makers on the court dont face the judgment of the voters for their actions. They are never held politically accountable to the American people.

But neither has the Supreme Court been above politics. Most justices have been political activistsparty politicosbefore joining the court. Many have owed their elevation to party ties, as a reward for loyalty, with every expectation that they will not turn coat on the court. Justices might shed party labels when they take their seats on the benchnewspapers dont print (R) or (D) after their names when reporting decisionsbut, with some notable exceptions, they do not abandon their party doctrines. Instead, they become politicians in robes.

No sooner did Americans begin to fashion the first political parties in the 1790s than the Supreme Court became a magnet for partisan conflict. From George Washington to George W. Bush, the opportunity for presidents to pack the bench with loyalists and so gain political and ideological control of this potent third branch has been irresistible. In this book I use the term packing in this general sense, to refer to the deliberate effort by the party in powersometimes across several administrations and over decadesto use the presidential prerogative of appointing justices to ensure domination of the Supreme Court by its own partisans.

Court-packing has been abetted by the life tenure the Constitution gives justices. The average tenure of Supreme Court justices since the nations founding has been more than fifteen years; since 1970, it has increased to more than twenty-six years. Justices throughout the courts history have clung to their seats long after their political patrons have retired and long after their parties have yielded to their opponents or even disappeared. They have often perpetuated ideologies and attitudes that are outdated or that Americans have repudiated at the ballot box. Inevitably, life tenure has produced a critical time lag, with the Supreme Court institutionally almost always behind the times. As a result, too often the Supreme Court has seemed to be fighting the progress of history.

The terms of elected officials are predictable, fixed by the Constitution. As of today, we know that, barring catastrophe, in 2020 or 2056, say, candidates for the presidency and Congress will be facing the judgment of voters. But the Supreme Court selection process is by nature unpredictable and erraticAmericas biggest wheel of fortune, with high stakes but uncertain payoffs. Everything depends on which justice may die or retire, when, and with what party controlling the presidency and the Senate. A one-term president like William Howard Taft may pack the Supreme Court with as many as six appointments and retain an influence there for decades, even though he loses reelection by a landslide. Another one-termer like Jimmy Carter may leave no justices behind him. Over the years, this judicial roulette has produced a jagged line of personal and political selections and made what might have been the most stable of branches the most unstableas well as the most unrepresentative of all the people.

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