History

Tyranny of the Minority

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

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Packing the Court: The Rise of Judicial Power and the Coming Crisis of the Supreme Court, by James MacGregor Burns, New York: Penguin Press, 336 pages, $27.95

There's a telling personal anecdote in the prologue to Packing the Court, the latest book by the Pulitzer Prize–winning political scientist James MacGregor Burns. The year is 1937, and Burns is a wide-eyed Williams College undergraduate. He is upset at the Supreme Court for thwarting the will of his beloved President Franklin D. Roosevelt. "How could these justices, most of whom had been appointed to the Supreme Court decades earlier," he writes in the voice of outraged youth, "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 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."

Actually, there's considerable historical evidence that the Framers both wanted and included 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 the Georgetown 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." James Wilson, for example, 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, whom Burns cites 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 Burns' condemnation of judicial review is 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." Burns spends several chapters caricaturing the legal and economic debates of the Progressive and New Deal eras as a battle between enlightened reformers and knuckle-dragging reactionaries. For example, he praises the progressive icon Justice Oliver Wendell Holmes 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 mention: 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 baneful 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 silent 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 Holmes' "probing, original" intellect, there's no mention of Holmes' most famous piece of judicial handiwork, his majority decision in Buck v. Bell (1927). That decision, which upheld the forced sterilization of "a feeble-minded white woman" identified as "the probable potential parent of socially inadequate offspring," included Holmes' often-quoted declaration that "three generations of imbeciles are enough." It's a curious omission. 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.

Contrast Burns' gentle handling of Holmes with his rough treatment of the conservative Justice George Sutherland, a consistent foe of New Deal regulations. Burns denounces Sutherland as the Court's "foremost reactionary" yet makes no mention of Sutherland's majority opinion in Powell v. Alabama (1932), which held that the 14th Amendment's Due Process Clause requires states to respect the right to counsel. The case involved the so-called Scottsboro boys, a group of young blacks convicted in a sham trial of raping two white women. Sutherland's commitment to individualism led him to that decision just as it led him to oppose much of the New Deal, a point that Burns is either unable or unwilling to recognize. Consequently, Holmes gets a free pass on eugenics while the "reactionary" Sutherland gets zero credit for securing the civil rights of black criminal defendants in the Jim Crow South.

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 have repudiated 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 Burns truly believes that judicial review is unconstitutional, he should not be celebrating when the Court overrules the president and other lawfully elected officials. Nor should he praise the Supreme Court's "painstaking handiwork" in Roe v. Wade (1973) without also criticizing that decision for striking down a Texas abortion law.

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

Damon W. Root (droot@reason.com) is an associate editor at reason.

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  1. wow! A partisan hack attacks his opponent’s faults and ignores his hero’s faults?

    You don’t say?

    1. A senile partisan hack at that. Oh, that the Court actually had been “a choke point for progressive reform”.

  2. With this guy, one generation of imbecile is apparently too much.

  3. 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 have repudiated 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.”

    He’s being perfectly consistent. In his worldview, Progressive projects are right, and the court should therefore do whatever it has to to make them possible.

  4. This idea of “progressives” that democracy is the chief goal of our system is strange to me.

    1. And when the last law was down, and the Devil turned ’round on you, where would you hide, Roper, the laws all being flat? This country is planted thick with laws, from coast to coast, Man’s laws, not God’s! And if you cut them down, and you’re just the man to do it, do you really think you could stand upright in the winds that would blow then? Yes, I’d give the Devil benefit of law, for my own safety’s sake!

      1. Or you could quote Schiller to take a somewhat different tack:

        Folly, thou conquerest, and I must yield!
        Against stupidity the very gods
        Themselves contend in vain. Exalted reason,
        Resplendent daughter of the head divine,
        Wise foundress of the system of the world,
        Guide of the stars, who art thou then if thou,
        Bound to the tail of folly’s uncurbed steed,
        Must, vainly shrieking with the drunken crowd,
        Eyes open, plunge down headlong in the abyss.
        Accursed, who striveth after noble ends,
        And with deliberate wisdom forms his plans!
        To the fool-king belongs the world.

        1. Aye.

  5. After all, there are all sorts of checks in the Constitution on the democratic power. I’d like to have more such checks (like repealing the 17th), not fewer.

  6. From here:

    Equally corrupt … 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 hears [majoritarianism] 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.

    1. Bravo! Bravo!

    2. Apparently Bork never read the 9th or 10th amendments.

    3. Hamilton did say that. But if you read the rest of his writings and his subsequent history you must conclude that his objection to the Bill of Rights was specious and it was because he did not want explicit restraint.

      That said I absolutely agree with you.

      Also.. I will point out this is an argument you can make with many conservatives and get them to understand. You’ll never get a liberal, much less a progressive, to ever understand.

  7. And to think I used to hang out in Craigslist Rants and Raves, instead of this site.
    Alsa, I would love to add to these conversations, but I have dumbed down my mind for too long…

    1. Well, you could always play the resident liberal.

    2. not to worry, it gets pretty stupid in here as well. give it time

  8. “But Burns’ condemnation of judicial review is 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.”

    –Man, what a great line! It really doesn’t occur to Progressives that the court is upholding it’s duty when it prevents them, the Progressives, from instituting the kind of state control required to bring about some of their historically heinous crimes against humanity, eh?

    Imagine that… Progressives and statists being upset that the Court has prevented them from forcing their will upon others… I guess the only solution is to pack the courts with ever increasingly statist judges…

    The kinds of judges that would allow the Republicans to tell people whom they can and cannot marry, or the Democrats to dictate to you how warm you could keep your home in the winter…

  9. I recommend that those leaving comments go to the Amazon.com link at the start of the article and vote on the reviews on that page. Anything with one or two stars tends to reflect the views expressed in the article above…

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  11. “How could this Constitution, written a long fucking time ago by a bunch of dead slaveowners,” he writes in the voice of outraged youth, “paralyze a government twice elected by a huge majority of Americans and halt what seemed to us the march of progress?”

    Thank God that’s no longer an issue!

  12. My only point is that if you take the Bible straight, as I’m sure many of Reasons readers do, you will see a lot of the Old Testament stuff as absolutely insane. Even some cursory knowledge of Hebrew and doing some mathematics and logic will tell you that you really won’t get the full deal by just doing regular skill english reading for those books. In other words, there’s more to the books of the Bible than most will ever grasp. I’m not concerned that Mr. Crumb will go to hell or anything crazy like that! It’s just that he, like many types of religionists, seems to take it literally, take it straight…the Bible’s books were not written by straight laced divinity students in 3 piece suits who white wash religious beliefs as if God made them with clothes on…the Bible’s books were written by people with very different mindsets..

  13. ..in order to really get the Books of the Bible, you have to cultivate such a mindset, it’s literally a labyrinth, that’s no joke

  14. My only point is that if you take the Bible straight, as I’m sure many of Reasons readers do, you will see a lot of the Old Testament stuff as absolutely insane.

  15. I recommend that those leaving comments go to the Amazon.com link at the start of the article and vote on the reviews on that page. Anything with one or two stars tends to reflect the views expressed in the article above…

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