Tyranny of the Minority

James MacGregor Burns' biased and cartoonish new history of the Supreme Court

Damon W. Root | August 6, 2009

There's a telling personal anecdote in the prologue to the latest book by Pulitzer Prize-winning political scientist James MacGregor Burns, Packing the Court: The Rise of Judicial Power and the Coming Crises of the Supreme Court. The scene is 1937 and Burns is a wide-eyed Williams College undergraduate upset at the Supreme Court for thwarting the will of his beloved President Franklin D. Roosevelt. "How could these justices," he writes in the voice of outraged youth, "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?" Fast forward seven decades and Burns is ready with the answer. He's also eager for some payback.

Burns' argument is that judicial review—the authority wielded by the courts to either uphold or strike down laws—represents an illegal power grab by "unelected and unaccountable politicians in robes." As he confidently (and incorrectly) asserts, "The Framers did not include a judicial veto in the Constitution because they did not want it."

There's actually considerable historical evidence that the Framers did want it and did include it. The relevant constitutional provision is Article III, Section 1, which vests "the judicial power" in "one Supreme Court, and in such inferior Courts as Congress from time to time may ordain and establish." As Georgetown University legal scholar Randy Barnett has documented, evidence from the 1787 constitutional convention, the state ratification conventions, and other contemporaneous sources all point in the same direction: the original public meaning of the phrase "the judicial power" included "judicial nullification of unconstitutional laws." As James Wilson told the Pennsylvania ratification convention in December 1788, "If a law should be made inconsistent with those powers vested by this instrument in Congress, the judges, as a consequence of their independence, and the particular powers of government being defined, will declare such law to be null and void."

Burns doesn't bother with any such evidence. Yet Thomas Jefferson, who Burns does cite as an opponent of judicial review, shared the same understanding of "the judicial power." In a 1789 letter to James Madison on the subject of including a Bill of Rights in the new Constitution, Jefferson wrote, "In the arguments in favor of a declaration of rights, you omit one which has great weight with me, the legal check which it puts into the hands of the judiciary."

But that's all just a warm-up for the book's real target: judicial conservatism, or what Burns calls "the court's historic role as a choke point for progressive reform." Thus Burns spends multiple chapters caricaturing and oversimplifying the legal and economic debates of the Progressive and New Deal eras. He praises the progressive icon Justice Oliver Wendell Holmes, for example, for his "annihilating" dissents that "slashed at the intellectual roots of the conservatives—their theory and logic, their premises and evidence."

Here's one "annihilating" dissent Burns forgot to bring up: In Meyer v. Nebraska (1923), the Supreme Court nullified a state law banning foreign language instruction for young children, passed during the anti-German hysteria of World War I. The Nebraska Supreme Court had upheld the ban, writing, "The legislature had seen the baleful effects of permitting foreigners, who had taken residence in this country, to rear and educate their children in the language of their native land." Holmes sided with the Nebraska court and cast a dissenting vote. The arch-conservative Justice James McReynolds authored the Supreme Court's opinion striking the ban down.

It's also worth noting that despite Burns' moist praise for the "probing, original intellect" of Justice Holmes, there's no mention of Holmes' most famous piece of judicial handiwork, his majority decision in Buck v. Bell (1927). That case upheld the forced sterilization of a "feebleminded and socially inadequate" young woman. It's a curious omission. After all, Burns wrote a whole book attacking the misdeeds of the Supreme Court, yet didn't mention one of the Court's most notorious decisions. Perhaps he didn't want to remind his readers that progressive reformers harbored all sorts of ugly views.

Now contrast that with Burns' rough treatment of conservative Justice George Sutherland, who was a consistent foe of New Deal economic regulation. Burns denounces Sutherland as the Court's "foremost reactionary," yet makes no mention of Sutherland's majority opinion in Powell v. Alabama (1932), which extended the right to counsel to the so-called Scottsboro boys, a group of black youths "convicted" of raping two white women in a sham trial. Sutherland's commitment to individualism led him to that decision just as it led him to oppose much of the New Deal, something that Burns is either unable or unwilling to recognize. To put that another way, Holmes got a free pass on eugenics while the "reactionary" Sutherland got zero credit for securing the civil rights of black criminal defendants in the Jim Crow South.

In fact, when it comes down to it, Burns isn't even a consistent opponent of judicial review. Sure, he attacks Sutherland and other conservatives for "perpetuat[ing] ideologies and attitudes that are outdated or that Americans rejected at the ballot box." But then he heaps praise on today's liberal justices for their "bold decisions striking down George W. Bush's abuses of executive power and upholding the rights of detainees." But if judicial review is as wrong as Burns says it is, Burns is the last person who should be celebrating when the Court overrules the president and other lawful representatives.

Determining how much power the federal courts should have in our system, and just when they should wield it, is one of the most significant issues in American politics. With its blatant partisanship and cartoonish simplifications, Packing the Court does a grave disservice to this important debate.

Damon W. Root is an associate editor at Reason magazine.

Comments

|8.6.09 @ 3:20PM|#

If only the law would get out of the way we would make things better for all.

Heard an interesting report on Cancer screening on the CBC last night, Doctors discussing the problems with CT Scans, hunting down all dark spots and such, and the question became if screening cannot tell you what is going on accurately, why do so many insist it must be done? The doctors interviewed all said the same thing, because the 'true' believers just know it is in your best interests.

Hopefully do-gooding is a symptom of our slow maturation, not an inherent human condition. Regardless it is a dangerous force.

|8.6.09 @ 3:22PM|#

CNN just reported that the Senate confirmed Sotomayor. So much for equality before the law and for property rights.

-jcr

qwerty|8.6.09 @ 3:25PM|#

"The Framers did not include a judicial veto in the Constitution because they did not want it."

If John Marshall wasn't a framer, he was pretty close. 90% of the Supreme court's decisions in the past 70 years have gone Burns' way, but I guess that's not good enough for him.

Our main problem today is that the courts have forgotten that the federal government's powers are limited and enumerated. When was the last time the court nullified a law on 9th or 10th amendment grounds?

I seriously just read the Fede|8.6.09 @ 3:28PM|#

Even though this fucker is a tool, I can't help but share a similar sentiment.

Our constitution is now about as difficult to pinpoint as the British constitution because of Judicial review. It's not simply that simple, lovely piece of parchment. It's now parchment +100,000 pages of Supreme Court excrement.

Jon|8.6.09 @ 3:34PM|#

"The Framers did not include a judicial veto in the Constitution because they did not want it."

Isn't rehashing the argument re judicial review--which the Court settled in Marbury v. Madison more than 200 years ago--a bit pointless? You can debate whether the framers actually intended for the federal courts to be able to review Congress' acts or whether they intended that the Executive and Legislative branches police themselves (which they do such a marvelous job at), but judicial review is firmly rooted and isn't going away.

|8.6.09 @ 3:35PM|#

The Framers did not include a judicial veto in the Constitution because they did not want it.

Article III Section 1 states: "The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish."

So, the Supreme Court is vested by the Constitution with the judicial power of the United States.

Article III Section 2 states: The judicial power shall extend to all cases, in law and equity, arising under this Constitution, . . .

In all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be party, the Supreme Court shall have original jurisdiction. In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make.

The Constitution states clearly that the Supreme Court's judicial power extends to all cases arising under the Constitution. It states that in certain cases, Congress may not limit this power, but that in others, including by implication cases challenging the authority of the national government, Congress may.

Arguably, Congress could strip the Supreme Court of jurisdiction over cases challenging actions of the national government on Constitutional grounds. Unless and until it does so, I think the Constitution clearly includes such jurisdiction in the initial grant: "judicial power shall extend to all cases, in law and equity, arising under this Constitution" and in the statement that "In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction."

So, I'm actually quite comfortable with the Constitutionality of SCOTUS exercising a judicial veto.

|8.6.09 @ 3:37PM|#

Let's try that again with less HTML incompetence:

Article III Section 2 states: "The judicial power shall extend to all cases, in law and equity, arising under this Constitution, . . ."

"In all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be party, the Supreme Court shall have original jurisdiction. In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make."

The Constitution states clearly that the Supreme Court's judicial power extends to all cases arising under the Constitution. It states that in certain cases, Congress may not limit this power, but that in others, including by implication cases challenging the authority of the national government, Congress may.

Arguably, Congress could strip the Supreme Court of jurisdiction over cases challenging actions of the national government on Constitutional grounds. Unless and until it does so, I think the Constitution clearly includes such jurisdiction in the initial grant: "judicial power shall extend to all cases, in law and equity, arising under this Constitution" and in the statement that "In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction."

So, I'm actually quite comfortable with the Constitutionality of SCOTUS exercising a judicial veto.

I seriously just read the Fede|8.6.09 @ 3:40PM|#

Also, in one of the Federalist Papers, Hamilton wrote that the judges have a veto through judicial review, and that they could, in fact, say pretty much anything. The check on power is for Congress or the Executive to ignore them (ala Andrew Jackson).

The problem with the framers is that they thought the three branches of government would be too busy fucking with each other, that they didn't consider all three branches finally getting together to fuck us.

|8.6.09 @ 3:46PM|#

Okay, two thoughts...

First, isn't it a little late to overturn Marbury v. Madison? I mean, even if there's a great legal basis for striking down judicial review, didn't that ship sail about 200 years ago?

Second, if Congress can pass unconstitutional laws and the courts can't do anything about it, then what's the point of the Constitution? Is it just some friendly guidelines?

Mad Max|8.6.09 @ 4:20PM|#

I believe judicial *review* is strongly implied by the text and structure of the Constitution, but not judicial *supremacy.*

Judicial review is when a court, in a case properly coming before it, decides relevant constititonal issues, and applies the Constitution even if that means disregarding a contrary statute.

Judicial *supremacy* is making the courts (or a particular court, like the U.S. Supreme Court) a secular Magisterium whose decisions on constitutional issues are treated as sacrosanct by other branches of government and citizens when they are dealing with issues of public policy.

If we recognize judicial review, it means that the federal courts can check and balance the other branches. But other branches can check and balance the federal courts. Specifically, Congress can limit the jurisdiction of federal courts.

For instance, between 1789 and around 1912, the U.S. Supreme Court was forbidden, by Congress, from hearing appeals from state courts if the state courts upheld a federal claim (i.e., struck down a state law or upheld a federal law).

In certain suits among people from different states, based on state law, Congress since 1989 has limited federal court jurisdiction to disputes over a particular dollar value.

In 1932, Congress denied jurisdiction to the federal courts in certain cases of peaceful labor picketing.

You get the idea.

Mad Max|8.6.09 @ 4:22PM|#

Another way to avoid judicial supremacy is for Congress and the President to exercise their own judgment in opposing unconstitutional laws, even if the U.S. Supremes have held similar laws constitutional. What are the Supremes going to do - pass a law Congress rejected, or which the President vetoed?

Wicks Cherrycoke|8.6.09 @ 4:46PM|#

Judicial review as envisioned by John Marshall also carried with it judicial restraint -- not a slavish deference to the legislature, but a careful understanding that the role of the Court is to apply the Constitution to specific disputes before it, not to involve itself in issues of policy, and least of all to use the law as a "tool of change" (read: Tool for forcing the political branches to accept the judges' policy choices). Striking down a law that clearly violated a constitutional guarantee of individual rights (including property rights) is acceptable. Using a "living and breathing" constitution reach desired policy outcomes is not.

oneiros|8.6.09 @ 5:03PM|#

The guy was at least right about it being a power grab, though.

Barry Loberfeld|8.6.09 @ 5:05PM|#

Equally corrupt, however, is this fiction that majoritarian democracy embodies the "manifest tenor" of the Constitution. Progressives and conservatives alike peddle this ideology (again, when it serves their respective purposes) for the same reason that, as Madison explained, the Constitution rejects it: "[T]here is nothing to check the inducements to sacrifice the weaker party, or an obnoxious individual. Hence it is, that such Democracies ... have ever been found incompatible with personal security, or the rights of property...." But contrast this with Bork, who begins by concurringly quoting G.K. Chesterton, a previously underappreciated touchstone of American constitutional exegesis: "What is the good of telling a community that it has every liberty except the liberty to make laws? The liberty to make laws is what constitutes a free people." Now there is no way to miss the parallels between this statement and those of Breyer and Dionne, but Bork himself comments, "The makers of our Constitution thought so too, for they provided wide powers to representative assemblies and ruled only a few subjects off limits by the Constitution." Indeed, they did? Observe how Bork, unable to find an echo of Chesterton in the words of either the Framers or the Constitution itself, hears it in what he believes to be the structure of the Constitution. But does that structure sound that note?

To answer these questions, let us turn to, not Madison, but the Framer who may be considered the most congenial to Bork and the Bork Left: Hamilton. Bork here is claiming that the body of the Constitution says GOVERNMENT CAN DO ANYTHING, with the Bill of Rights adding EXCEPT THESE THINGS. Yet recall Hamilton's objection to the Bill of Rights: It "would contain various exceptions to powers which are not granted; and on this very account, would afford a colourable pretext to claim more than were granted. For why declare that things shall not be done which there is no power to do? Why for instance, should it be said, that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed?" In other words, we didn't need the EXCEPT THESE THINGS because the Constitution doesn't say GOVERNMENT CAN DO ANYTHING. With the inclusion of the Bill of Rights -- more a reinforcement than a redundancy -- our Constitution doubly protects individual liberties from majoritarian ("representative") violation. The Bork-Breyer disinterpretation of the Constitution is the very "colourable pretext" Hamilton feared. It is the macabre transformation of Madisonian liberal republicanism into Rousseauian totalitarian democracy.

FULL ARTICLE

jhn|8.6.09 @ 5:07PM|#

Judicial review and supremacy is necessary and inevitable. The Constitution *is* the law; how can a court applying the law not apply the Constitution and at times find a law unconstitutional?

Additionally, the very vagueness in the Constitution ("due process" etc) is there on purpose, as the consequences of specificity for freedom would be worse than the occasional silly opinion.

But there's something to be said for countries where there is a separate constitutional court dedicated to resolving just these issues. And just as a matter of legal theory the Supreme Court has gotten things stupidly wrong from time to time. It would have made more sense to incorporate the Bill of Rights using the privileges and immunities clause, which speaks to the issue, rather than the 14th Amendment and invented nonsense about "substantive" due process.

|8.6.09 @ 5:16PM|#

Judicial *supremacy* is making the courts (or a particular court, like the U.S. Supreme Court) a secular Magisterium whose decisions on constitutional issues are treated as sacrosanct by other branches of government and citizens when they are dealing with issues of public policy.

Somebody has to have the final say on whether something is Constitutional or not. I think the SCOTUS is as good a place as any to put that final say.

If we recognize judicial review, it means that the federal courts can check and balance the other branches. But other branches can check and balance the federal courts. Specifically, Congress can limit the jurisdiction of federal courts.

Which it does.

So I really don't see the problem.

I'm also having a hard time seeing a practical difference between judicial review and judicial supremacy as you describe it. The SCOTUS determines that a law is unconstitutional. Its finding is binding on all the courts, who are thus obligated to ignore the law henceforth, regardless of what Congress says (or said). The law is unenforceable and effectively dead.

Robert|8.6.09 @ 5:45PM|#

Imagine what it would be like if what RC Dean wrote were not practiced. It would mean that every decision in every case by a lower court under an unconstitutional law would have to work its way thru to the highest court which nullified similar decisions. All they're doing is saving the trouble of having all these cases appealed where the outcome would already be known -- unless the judges wanted to act capriciously and rule a provision of the Constitution to favor a party in one case and not a different party in another!

I never understood why judicial review of provisions under the US Constitution was at all controversial, given the statements it makes that RC Dean pointed out. I could understand it not coming out that way under other constitutions, but not the US.

Is judicial review of US statutory provisions (as against administrative decisions) as controversial an issue on the principle? It doesn't seem to be. The statutes often specify which court has jurisdiction in such disputes -- but so does the US Constitution, as explained above. I don't understand why people object to one and not the other, when they're each as plain as day.

Robert|8.6.09 @ 5:55PM|#

There is at least one structural problem with the US federal judiciary, however: the unlimited terms of the judges. Talk about a need for term limits!

Would it have been feasible to make the hiring of judges part of the civil service? The judges aren't supposed to be determining policy, so does any country or state take that to heart and make trial and appeals judges civil service posts? You know, where if there's a job opening, they take whoever's next in line and wants it according to test scores, and there's a mandatory retirement age?

Paul|8.6.09 @ 6:16PM|#

that they didn't consider all three branches finally getting together to fuck us.

We're now one judge closer to that reality.

Mad Max|8.6.09 @ 7:24PM|#

'But contrast this with Bork, who begins by concurringly quoting G.K. Chesterton, a previously underappreciated touchstone of American constitutional exegesis: "What is the good of telling a community that it has every liberty except the liberty to make laws? The liberty to make laws is what constitutes a free people."'

Bork has gotten Chesterton wrong. The passage Bork cites comes from Chesterton's book *Heretics,* in which Chesterton is discussing the Socialist author George Bernard Shaw. Shaw was such a devotee of state power as to make Chesterton himself look like Michael Badnarik.

Shaw supported the destruction of private property rights at the hands of the socialist state. In later years, Shaw visited the Soviet Union during the Ukrainian famine and said that the Soviet people were well-fed, which is like visiting Poland in 1943 and saying he saw no evidence that Jews were being mistreated.

The opinion of Shaw's which Chesterton was refuting was that general principles are oppressive - that (in Chesterton's paraphrase) the only golden rule is that there are no golden rules. Chesterton, in contrast, stood up for the need for human beings to have laws and principles to govern themselves. In other words, Shaw would cast aside the traditional protection against arbitrary government - having people operate according to known laws and principles - and would replace this with letting the government do whatever it wanted, based on no overriding principle. So you can see who was defending liberty, and who was attacking it, in this situation. Chesterton wasn't directly commenting on U.S. constitutional law, although I would say that those who would assail the law of the Constitution in pursuit of a majoritarian pipe-dream are acting like Shaw, not like Chesterton.

Mad Max|8.6.09 @ 7:26PM|#

'Somebody has to have the final say on whether something is Constitutional or not. I think the SCOTUS is as good a place as any to put that final say.'

That's what President Bush said when Congress sent him the McCain-Feingold campaign finance bill. While Bush was aware that the bill might have some First Amendment problems, he figured that if it was unconstitutional, the Supremes would strike it down. So Bush signed it. What a great idea *that* was!

|8.6.09 @ 8:13PM|#

CNN just reported that the Senate confirmed Sotomayor. So much for equality before the law and for property rights.

Yeah, a libertarian nightmare if there ever was one. A leftist "little people" judge who not only likes State regulation but apparently likes to side with law enforcement on criminal matters as well. But replacing the abysmal Souter was no loss or gain.

|8.6.09 @ 8:28PM|#

Nice to see members of the "Four Horsemen" get credit. They were some of the greatest Constitutionalists and civil libertarians ever on the Court--yet they are maligned and smeared as the most evil bunch by the Law School elite.

McReynolds--who is defamed as the worst of the group- wrote very short, concise opinions that made made the other side look like fools.

|8.6.09 @ 9:31PM|#

Sotomayor isn't any worse than Souter, guys.

If Scalia dies or retires during Obama's term, then it will be time to shit your pants.

|8.6.09 @ 10:34PM|#

If Scalia dies or retires during Obama's term, then it will be time to shit your pants.

Right. Rightly or wrongly Scalia has too much attachment to the conservative legal movement to let that happen, barring death or grave illness. Besides, he's a fervent Catholic in his personal life. If he even hinted at retirement, he would have called it quits when Bush's approval ratings went in the tank.

I could see Kennedy retiring though, which would cause probably cause a sizable shift in the court since he is the only swing vote on most matters.

Justen Robertson|8.6.09 @ 10:45PM|#

Understanding the basis of judicial review is as simple as understanding three things: the third article of the constitution which sets up the supreme court as the highest court in the country, the supremacy clause, and precedent in the courts. The supremacy clause states:

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby; any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

Precedence in the court is the mechanism by which the court maintains consistency; when making decisions, the court relies on how very similar cases have been decided in the past. By necessity, a lower court almost always defers to a higher court in issues of precedence; if it fails to do so, the higher court will typically reverse the decision on appeal anyway.

Now let's conflate the two. The constitution, and laws made in pursuance thereof, and treaties made under the authority of the United States, are the supreme law of the land, and court justices are bound to them, other laws notwithstanding.

We right away know that the constitution has supremacy over federal law, since laws made *not* in pursuance of the constitution are not covered by the supremacy clause - i.e. if it goes against the constitution, it does not enjoy supremacy. Under the concept of precedence, when a supreme court decides that a law violates the constitution, a lower court is obliged to act in accordance with that precedent.

That should tell us rationally that the law in question is "struck down" - thus judicial review is established in practice and reason, even if not explicitly. The laws aren't taken off the books, but neither are they applied - it's a waste of the executive's time to enforce and a waste of the legislature's resources to rely on.

It doesn't take a genius to figure this out, just someone who understand the fundamental nature of our government. It does seem to take a "genius" to invent the mental acrobatics necessary to condemn judicial review when it acts against his interests, however.

Robert|8.7.09 @ 1:29AM|#

So why is Marbury treated as such a big deal? Seems obvious to me that it would've just been a matter of time before a similar decision would've been made.

How would opponents of judicial review have it? Would there just be an irrebuttable presumption that whoever got to court first was correct -- in which case all a court would need to do would be to record the date and time of entry, and they win if they're first? And would that not lead in turn to everyone's having an att'y in ct. at all times -- or just once, claiming all things for all time?

Justen Robertson|8.7.09 @ 3:56AM|#

Of course if you take the argument against judicial review to its logical conclusion it's ridiculous and can never result in justice or an effective constitution - but gee, that's just so darn annoying when you're looking to push an unconstitutional law for the sake of 'safety' or 'progress' you know. Passing an amendment to change something you don't like about the constitution is sooo haaard, why did they make it that way? Gosh! Idiots!

|8.7.09 @ 4:51AM|#

The only people who don't support judicial review are found in Congress - the one branch checked by the power of judicial review.

It really makes me laugh when people imply judicial review is a partisan issue. Both conservatives and liberals LOVE their blatantly unconstitutional laws. The only catch is that a law a liberal will find unconstitutional will be just fine to a conservative, and vice-versa. But don't think for a second that conservatives don't have a whole slew of laws they don't want tossed out by some "activist" judge.

We saw this quite a bit during the Bush administration.

|8.7.09 @ 9:29AM|#

The only people who don't support judicial review are found in Congress - the one branch checked by the power of judicial review.

What are you talking about? The courts rule on the constitutionality of executive actions, too.

-jcr

copypasta|8.7.09 @ 10:37AM|#

I fail to see why someone would feel it necessary to take libertarianism so seriously.

Here's Stephen's sure-fire method of discussing anything with a libertarian:

Don't. Libertarianism is political/economic insanity dressed up in logical fallacies. Just chuckle and give them rhetorical pats on the head for being so gosh-darn cute.

Mad Max|8.7.09 @ 3:28PM|#

'It doesn't take a genius to figure this out, just someone who understand the fundamental nature of our government. It does seem to take a "genius" to invent the mental acrobatics necessary to condemn judicial review when it acts against his interests, however.'

So President George W. Bush was right to sign the McCain-Feingold law, despite his First Amendment scruples, and leave it up to the Supreme Court to clean up the resulting mess?

josh|8.9.09 @ 11:34PM|#

mmm