NYT split decision on James MacGregor Burns's new Supreme Court book
Two big ideas animate “Packing the Court.” One is that the court has for more than 200 years illegitimately claimed a power not granted to it by the Constitution. The other is that it has on the whole used this power to protect the powerful and to thwart progress.
James MacGregor Burns is a distinguished historian best known for his work on Franklin Delano Roosevelt, and the book’s title is, of course, a reference to Roosevelt’s failed attempt to increase the number of justices after the court repeatedly struck down New Deal legislation. That episode, presented in lively detail, accounts for only two of the book’s 12 chapters, but it informs Burns’s view of the court from start to finish.
Burns is deeply hostile to Chief Justice John Marshall’s claim, in Marbury v. Madison in 1803, that the Supreme Court has the last word on whether the actions of the other two branches are constitutional. “The court’s vetoes of acts of Congress are founded in a ploy by John Marshall that was exploited and expanded by later conservatives until the court today stands supreme and unaccountable,” Burns writes.
He proposes a counterattack. If the court repeatedly strikes down “vital progressive legislation,” he says, the president should “announce flatly that he or she would not accept the Supreme Court’s verdicts.” The case against judicial review has been made more fully and rigorously elsewhere, but whatever its merits, it is hard to take very seriously as a practical matter this late in the life of the Republic.
Burns is more persuasive when he writes that the court “has far more often been a tool for reaction, not progress.” The justices are, after all, often a sort of lagging indicator, legacies of the presidents who appointed them decades earlier. There is a random element, too. President William H. Taft appointed six justices in three years. The last Democratic president, Bill Clinton, appointed two justices over eight years; the one before him, Jimmy Carter, had no appointments in his single term. This amounts, Burns writes, to a “judicial roulette wheel.”
Read entire article at Adam Liptak in the NYT
James MacGregor Burns is a distinguished historian best known for his work on Franklin Delano Roosevelt, and the book’s title is, of course, a reference to Roosevelt’s failed attempt to increase the number of justices after the court repeatedly struck down New Deal legislation. That episode, presented in lively detail, accounts for only two of the book’s 12 chapters, but it informs Burns’s view of the court from start to finish.
Burns is deeply hostile to Chief Justice John Marshall’s claim, in Marbury v. Madison in 1803, that the Supreme Court has the last word on whether the actions of the other two branches are constitutional. “The court’s vetoes of acts of Congress are founded in a ploy by John Marshall that was exploited and expanded by later conservatives until the court today stands supreme and unaccountable,” Burns writes.
He proposes a counterattack. If the court repeatedly strikes down “vital progressive legislation,” he says, the president should “announce flatly that he or she would not accept the Supreme Court’s verdicts.” The case against judicial review has been made more fully and rigorously elsewhere, but whatever its merits, it is hard to take very seriously as a practical matter this late in the life of the Republic.
Burns is more persuasive when he writes that the court “has far more often been a tool for reaction, not progress.” The justices are, after all, often a sort of lagging indicator, legacies of the presidents who appointed them decades earlier. There is a random element, too. President William H. Taft appointed six justices in three years. The last Democratic president, Bill Clinton, appointed two justices over eight years; the one before him, Jimmy Carter, had no appointments in his single term. This amounts, Burns writes, to a “judicial roulette wheel.”