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Packing the Court serves as an excellent primer on the history of the Supreme Court. Before I picked up the book I had been very eager to learn about the fundamental role and famous rulings of the court, and I was not disappointed. I can now talk intelligently about Justice Marshall, Justice Warren, Marbury v. Madison, McCulloch v. Maryland, Dred Scott, etc.
But Burns does much more than merely walk his reader through the history. He also offers a sharp critique of and a push for overhauling the institution. His central argument is that the founding fathers never intended to put in place a judicial branch with absolute and final authority to overrule congress and determine what is and is not constitutional. As such, the book concludes with a call to reshape the role of the supreme court by adding an amendment to the constitution allowing the American people to decide if they wish to grant judicial supremacy to the court or not.
MacGregor
The power grab started with Justice Marshall, the first significant figure of the court. Amazingly, the justices who preceded him cared little for the job. For example, John Jay, the first chief justice, resigned to run for governor of New York. But Marshall's impact continues to resound to this day. In what I like to think of as the big bang case, Marbury v. Madison, President Jefferson sought to deny Marbury a minor government position that had been promised by President Adams, and a man named Charles Lee pointed to the Judiciary Act of 1789 as evidence that Marbury should receive his commission. Justice Marshall ruled in 1803 that the Judiciary Act was unconstitutional and denied Marbury his post. This decision was subtle, brilliant, and the basis of judicial supremacy over the government because it set a precedent that gave the Supreme Court power to declare acts of Congress unconstitutional.
Ever since, America has been at the mercy of an institution whose members are not elected or subject to checks and balances. This, argues Burns, contradicts a fundamental principle of American democracy-that the people decide.
More than just a philosophical crisis, this paradigm has historically produced disastrous real world consequences, according to Burns. The court viciously upheld pro-slavery laws until the Civil War with rulings such as Dred Scott, and it continued to combat civil rights initiatives during the Reconstruction period with decisions like Cruikshank, which Justice Bradley cited in declaring that "depriving white people of the right of choosing their own company would be to introduce another kind of slavery" (89).
These are not isolated travesties. Burns argues that with the exception of the Warren Court, which fought for civil rights such as Miranda, the judiciary has historically been on the wrong side of history, siding with slave owners and corporate interests.
Most of the great presidents, such as Jackson, Lincoln, TR and FDR, spoke out against and/or took measures to curb the court. Jackson infamously dared the court to enforce its ruling in favor of the Cherokees and vetoed rechartering the Bank of the United States, flouting at Marshall's McCulloch decision. Lincoln marginalized Justice Taney by preserving the Union, even though Taney thought the South had the right to secede. TR described Supreme Court justices as "a menace to the welfare of the Nation" (122). And FDR successfully pressured the court to stop obstructing the New Deal, though it may have been a pyrrhic victory.
Burns concludes with a dire warning about a coming crisis spearheaded by the Bush administration's hard right push. Although the Roberts court has offered some hope by restraining Bush's abuses of executive power with rulings that outlawed the practice of using military tribunals to detain terror suspects without habeas corpus and holding them indefinitely, the recent trend has been dramatically towards conservatism, with rulings that criminalized "partial-birth" abortion and "blocked court challenges to the constitutionality of Bush's grants of federal money to religious institutions providing services under his 'faith-based initiative" (239).
In that vein, what I found most fascinating is Burns' account of the historical role of the Republican Party. I always love to say that history is worth learning because it's shocking. More than just the party of Lincoln that emancipated the slaves, the Republicans tirelessly fought to implement the Civil Rights Act of 1866, which made all native-born Americans full citizens, and they passed the fourteenth amendment. In those days, it was the Democrats who obstructed progress.
Such a scenario is difficult to fathom now, considering how dramatically the Republicans party has disgraced itself and this country. In so many ways they shame the legacy of Lincoln with their racist agendas, whether it be calling for rewriting the fourteenth amendment or legally authorizing racial profiling or opposing the Islamic center in Lower Manhattan.
Just as the Republicans would better serve America if they returned to their original noble ideals, the Supreme Court should likewise be restored to its initial purpose. Although, to be sure, Burns does not draw the Republican/Supreme Court analogy in his book, he proposes that the court's authority should be limited, and that it must "interpret ambiguous statutes, adjust conflicting laws, clarify jurisdictions, and police the boundaries of federal-state power-virtually all of its present responsibilities except that of declaring federal laws unconstitutional. It would simply be brought closer to the role the Framers originally envisioned for it" (254).
Packing the Court, by James MacGregor Burns - A Great Read
(Check out my blog for more articles: [http://scholarlywritingreviewed.com/].)
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