Packing the Court: The Rise of Judicial Power and the Coming Crisis of the Supreme Court [MP3 CD]

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!

Packing the Court is a history of the supreme court and a description of the inherent political nature of the court. It is a fairly light read going through the evolution of the court and how it in some sense created its own power. The court's initial endowments were quite imprecise and as a result it required its own precedents to create its own powers. The book follows the history of the battles between the courts and government legislation how the tensions manifested themselves and takes us up to the present day and the current members of the Supreme Court.

The phrase packing the court refers to the exercise FDR attempted when faced with a Supreme Court that perpetually blocked legislation in which the president attempted to increase the number of justices and with the vacancies put in more liberal minded justices. This history of the Supreme Court is very interesting and this book provides an easy introduction to some of the major cases that have both shaped the nation and driven social policy. One sees clearly that the personal opinions and beliefs of the judge consistently impact very deeply the decision of the court. The idea that justice is blind is not applicable to the level of justice seen by the Supreme court, this is unsurprising as the cases seen by the Supreme Court have been through so many levels already that clear cut cases will have been settled. Thus the finest points determine the arguments of the justices and those fine points are merely rationalizations of the Justice's embedded tilt.

The author is very much a proponent of a liberal court, able to keep up with the times. As a result he discusses at some length the history of when the court remained behind the times and the damage that came as a result. The unique position of Judges having life positions means presidents can impact policy for decades and at a minumum longer than any publicly elected official. The author uses the book to show the detriment that can be caused to society as a result of these mismatches in perspectives, highlighted by slavery, the new deal and current originalism. Though the book doesnt outright try to draw a sweeping solution to this "problem" that can arise at the supreme court, in the epilogue it is argued that we can deal with it through presidential overrule. Given all the examples articulated by the author, the solution makes sense, but in reality its not a very strong idea as one can imagine a society and president regressing to racism in which a liberal court prevents that regression. All in all the book was an interesting read and a refreshing reminder that the Supreme Courts in all ages are political instruments and very effective ones making generational impacts. Thus the importance of who is on them and their beliefs can impact us all on deep ethical issues.