Tyranny of the Minority

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

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 ([e-mail]) is an associate editor at reason.