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Packing the Court by James MacGregor Burns:

This book, reviewed in the New York Times on Sunday, and written by an eminent historian presidential biographer, is a history and critique of the Supreme Court. I've read it. The only thing I learned is that there is still at least one historian who is stuck in a 1930s time warp, in which the history of the Court is a battle between evil reactionaries who oppose "Progressive" legislation and brave, goodhearted liberals who support such legislation. Every hoary Progressive/New Dealer myth about the Supreme Court and its Justices is trotted out, every liberal shibboleth of the past seventy years repeated.

Consider Burns's depiction of the Justices the early 20th century. Holmes, Brandeis, and Harlan were the liberal heroes, everyone else the reactionary villains.

Thus, Holmes was the "great dissenter" who pitted "pragmatism against conservative dogma." No mention of his hostility to African-American rights, support for eugenics, and so forth. John Marshall Harlan, who helped introduce the liberty of contract doctrine to the Supreme Court, and wrote one of the most important liberty of contract cases, Adair v. United States, is anachronistically described as a "liberal." Brandeis was "an exquisitely tolerant, compassionate and wordly man" with a "zeal for freedom ... in his blood."

The rest of the Court, however, adopted the late Justice Stephen Field's "laissez-faire absolutism." William Day (who dissented in Adair) was a "reliable ally of the court's conservative phalanx." All of the six Justices appointed by William Howard Taft were "stout conservatives." William Van Devanter was the "commander-in-chief of judicial reaction." George Sutherland was the leader of the Court's "extreme right-wing." Pierce Butler, who was perhaps the strongest opponent of the excesses of Prohibition enforcement and the only dissenter in Buck v. Bell (coerced sterilization), is reduced to a right-wing railroad lawyer who showed no "regard for dissidents, or for blacks or workers." And so on.

No serious modern historian of the Court would recognize these cartoon characters. But this book, I'm afraid, is not a serious history.

Chris Lawrence (mail) (www):
For starters... Burns is a political scientist (albeit one in the American political development mold), not a historian.
8.4.2009 3:18pm
Calderon:
Not to hijack DB's post, but one thing that's always struck me as curious about FDR's court packing plan is why didn't he simply attempt to amend the Constitution? It seems to me like the argument "that times have changed from 1787, the federal government needs more power to regulate the economy" would be a much easier sell during the Depression than "hey, I'm going to intentionally pack this third branch of government that's supposed to provide a check and balance on the other two." Does anyone know of a book or other discussion that talks about why FDR didn't use amendments instead of trying to push through court packing legislation?

As far as the NYT review of MacGregor's book, I loved Liptak's understated "Burns is, unsurprisingly if at some level inconsistently, a great admirer of Chief Justice Earl Warren." I haven't read the book, but it's hard to see any consistency on any level in believing judicial review should be abolished while at the same time praising the Warren Court. And needless to say, abolishing judicial review would not cure ills like that the Court "tolerated the suppression of dissent and endorsed the internment of more than 100,000 Japanese-Americans during World War II," since those policies originated with legislative and/or executive branches.
8.4.2009 3:25pm
David M. Nieporent (www):
Calderon: my guess is speed. Even a very popular amendment would take, in all likelihood, six months to a year to pass (although the 26th was an exception), while the court reorg act could take weeks.
8.4.2009 3:31pm
Andrew J. Lazarus (mail):
And McReynolds wouldn't shake Brandeis's hand. Oh, wait! That's true.
8.4.2009 3:31pm
DavidBernstein (mail):
McReynolds was actually somewhat cartoonish. But he was also the author of two of the most important cases in the Supreme Court's history, cases still cited favorably by liberals, Meyer v. Nebraska and Pierce v. Society of Sisters.
8.4.2009 4:00pm
Assistant Village Idiot (mail) (www):
There is some difference between what is socially true and what is intellectually true, apparently.
8.4.2009 4:11pm
/:
No mention of his hostility to African-American rights, support for eugenics, and so forth.

It's not like that wasn't part of the platform of "Progressivism" at that time. Woodrow Wilson was a peach, too.
8.4.2009 4:17pm
Abe (mail):
For a well-written reconsideration of Justice McReynolds, see "I Dissent: The Legacy of Justice James Clark McReynolds" by James E. Bond, former Dean (and still, I believe Professor Emeritus) of the University of Puget Sound School of Law/Seattle University School of Law.
8.4.2009 4:21pm
jawats (mail):
I think this is apropos:

"Time is money. However, it is more finite than regular money, and we are led to believe that time is much more finite than it. Two dominant ideas do the leading. They could be personified as the Revolutionary and the Seducer. The Revolutionary urges action: We know all we need to know, now we must act. The seducer calls for no further delay: We have already waited too long. 'The glorious lamp of heaven, the sun,/ The higher he's a-getting' we are told in that great poem of seduction, which begins with the warning 'Gather ye rosebuds while ye may' [4]. Both the Revolutionary and the Seducer have the truth on their side: time is fleeting and we must act. Yet, they urge action without delay. The Seducer urges it because he knows that reflection kills lust and quaffs urges. He accuses time of stealing beauty, because time gives time for knowledge of the other, which quells unwarranted desire, and allows the appreciation of what beauty remains. Such urgency about time compels us to relate to it in an even more desperate manner. The spirit of our age speaks as the Revolutionary saying 'Change the world!,' and as the Seducer saying 'The time is almost up.' Hearing them, we consider our non-renewable resource of time, and then become all the more inclined to put aside reflection, and acquiesce to decisive action: 'It's now or never.'"

8.4.2009 4:33pm
davod (mail):
"Not to hijack DB's post, but one thing that's always struck me as curious about FDR's court packing plan is why didn't he simply attempt to amend the Constitution?"

The court was stifling FDRs ambitions. Why would FDR go the legitimate route.
8.4.2009 5:36pm
MRSquared (mail):
If I am not mistaken, the constitution does not mandate the size of the Supreme Court. Why the need for an amendment? Or are you referring to amending the Constitution to dismantle all of its inconvenient checks on federal power?
8.4.2009 6:06pm
New Pseudonym (mail):

"Not to hijack DB's post, but one thing that's always struck me as curious about FDR's court packing plan is why didn't he simply attempt to amend the Constitution?"

The court was stifling FDRs ambitions. Why would FDR go the legitimate route.


What's illegitimate about changing the number of justices on the Supreme Court? Roosevelt was different only in that he failed at it, unlike (for example) Lincoln. And it's not a one-way street, Congress passed a veto-proof act reducing the number of justices fromn 10 to 9 so that A. Johnson would not get a nomination.

For a good deal of its history, the number of justices was determined by the fact that each justice was associated with a particular circuit. That continues in principle, but not the one per circuit. Perhaps we should have 11 justices? (And eliminate the Federal Circuit ;-)).

That being said, I believe the absence in the Constitution of a set number of justices is a defect, which permitted abuses in the 19th century (and I include in this having an even number of justices on the court, permitting tie votes on an institution charged with making final determinations). I would favor an amendment to the Constitution setting the number of justices at nine. I would combine this with a provision requiring a supermajority similar to the ones that govern the amendment process and certain acts of the legislative branch. In cases in which the other two branches of government have acted in agreement, it would take a 6-3 vote of the court to declare their action unconstitutional. It seems to me that The House + The Senate + The President + 4 Justices ought to beat 5 Justices any day.
8.4.2009 6:07pm
MRSquared (mail):
It's not that it's constitutionally or legally illegitimate; it's that it is politically illegitimate.

Also, I think the poster was referring to amending the constitution to enable legislation that FDR wanted to pack to ease approval of.
8.4.2009 6:13pm
Anderson (mail):
I hadn't realized that Burns was even still alive, so the claim that he's stuck in the past is at least superficially plausible. He graduated college in 1939, according to the dust jacket of his FDR bio (1956).
8.4.2009 6:21pm
Hawaii Mike (mail):
Didn't the magic number of nine preceded the establishment of the federal circuits? Anyway, precedent says there shall be but nine, and that is not likely to be disturbed in the near future.

There are really more important constitutional amendments that should be considered first, such as a line-item veto, a single subject requirement for congressional legislation, and a provision that memorializes one man, one vote by prohibiting gerrymandering of congressional seats.
8.4.2009 6:21pm
MarkP (mail):
I read Burns' book; it's a polemic, and a very good one at that. Funny, but the writing that is most similar to Burns' writing is DB's own post criticizing Burns' book. DB refers to "1930's time warp" and "hoary myth" and "liberal shibboleth" and "cartoon characters" in describing Burns as NOT a "serious modern historian of the Court." DB's style here certainly mirrors, if it does not intentionally mimic, Burns' style.

DB's post also is silent regarding Burns' primary effort: to examine the role of the Supreme Court over the course of the nation's history. Burns does a pretty good job of covering the Supreme Court's role in the Federalist/Antifederalist confrontation, the Court's ability to stop Jacksonian change, the fight over the constitutionality of slavery leading up to the Civil War, the Court's role in reversing/minimizing Reconstruction, and the Court's role in minimizing Progressive legislation (like the income tax) even before Lochner.

There's plenty to criticize in Burns' book (I found his skepticism about judicial review to be particularly weak), but his overall argument is one worth considering: does the nature of the Supreme Court, with an undefined number of justices and life tenure for each member, make it peculiarly archaic and more anti-democratic than necessary in our Republic? Has the Supreme Court worked greater ill in our society than necessary? If you think those questions are worth considering, Burns' book is a provocative argument to consider. It's serious history, even if DB doesn't consider it so.

At a minimum, Burns' book is one of many recent works to argue for defined terms for Supreme Court justices. The combination of the political nature of the Court, and the time lag of appointments to the Court (and life tenure), would, in the opinion of many current writers, be ameliorated with simple term limits and a prescribed size for the Court. In the end, Burns' book is an argument for pretty minimal constitutional change (improvement?), but DB's hostility to Burns' argument makes me wonder whether it's such a minimal argument after all.
8.4.2009 6:36pm
Brett Bellmore:

why didn't he simply attempt to amend the Constitution


Because states can reject amendments? That would be my guess, anyway.
8.4.2009 6:56pm
Angus:
Shorter DB:

Supreme Court history with conservative slant = good
Supreme Court history with liberal slant = bad.

We get it, and in a much more succinct way.
8.4.2009 6:57pm
CDR D (mail):
I always understood that McReynolds hated Cardozo because Cardozo was a Jew. Supposedly, McR wouldn't even acknowledge Cardozo's presence, would never speak to him.

Maybe it was Brandeis, too.
8.4.2009 7:44pm
mariner:
Shorter Angus:

"".
8.4.2009 7:48pm
Dilan Esper (mail) (www):
I think Prof. Bernstein's point is well-taken, and further, we should remember not to get too deep in the weeds with respect to ideological labels for Supreme Court justices.

Sure, justices have ideologies. But even at the time, they also have heterodoxies-- law and order Scalia pushing for enforcement of procedural protections for criminal defendants or against flag burning laws; liberal lion Douglas opposing affirmative action.

And over time, as priorities change, the things that made them "liberal" or "conservative" may recede. Holmes was conservative in many ways, for instance Buck v. Bell, but mandatory sterilization is not a burning issue anymore while free speech (where Holmes got very liberal over time) is still one.

And as Bernstein points out, you could say McReynolds was a conservative on issues of federal power and freedom of contract, but on the other hand, he advanced substantive due process doctrine in the realm of personal liberties in 2 very important cases and thus paved the way for Griswold and Roe.

If you are doing history (rather than just commenting on the current court), it's better to try to look at these people based on the totality of what they did rather than just looking for a label.
8.4.2009 8:15pm
Bob from Ohio (mail):

He graduated college in 1939


That makes him about 92.

So who actually wrote this book?
8.4.2009 8:34pm
David M. Nieporent (www):
I read Burns' book; it's a polemic, and a very good one at that. Funny, but the writing that is most similar to Burns' writing is DB's own post criticizing Burns' book.
Uh, DB's post is a blog post. Burns' book is allegedly a serious work. If they're similar, that doesn't say that there's something wrong with DB's post, but Burns' book.
8.4.2009 8:41pm
DavidStras (mail):
I just finished a very lengthy project on Justice Pierce Butler for a Vanderbilt Law Review symposium and I think it is a mistake to label him as a conservative. He was very pro-defendant in his Fourth Amendment and Sixth Amendment jurisprudence, for example. To the extent labels are helpful, Justice Butler is much more libertarian than conservative, but most of the treatments of this period do not take a close look at the jurisprudence of the Justices that they describe. I am sure similar observations can be made about Justices Van Devanter, McReynolds, and Sutherland too.
8.4.2009 8:47pm
Calderon:
MRSquared said:


If I am not mistaken, the constitution does not mandate the size of the Supreme Court. Why the need for an amendment? Or are you referring to amending the Constitution to dismantle all of its inconvenient checks on federal power?


I meant more of the latter, viz., why didn't FDR seek to pass a constitutional amendment that would give the federal and state government plenary power to pass economic legislation, amending Article I, Section 8. I understand that it could have been the timing, though in 1935 and 36 he seemed to have such large majorities in Congress and support in the states that he could have passed amendments fairly quickly. Also, whatever else one thinks of FDR, he was a consummate and very skilled politician, and you'd think he'd predict the backlash from the court packing plan while getting the country behind a constitutional amendment could have reinvigorated people behind his agenda.

I've just always found it odd because in the various books and articles I've read the option of constitutional amendment versus court packing is never discussed, so I assume I'm missing it somewhere ... though I guess it's possible FDR and his administration just never considered it.
8.4.2009 8:54pm
Volokh Groupie:
Clearly it isn't a serious history. There's a place for political polemics and there are places with similar ideologies which will laud them. DB does make some specific points regarding the poor characterization of certain Justices by Burns and I don't think that's really been discussed in the comments - that strikes me as the most interesting part. Otherwise, this line from Burn's book:

"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."

strikes me as what one could get when you have politicians breaking the separation of powers protections and getting their hands on the court.
8.4.2009 9:13pm
Tenrou Ugetsu (mail):
I could not disagree more. Though the book does possess a liberal slant, it does accurately account for the divisive nature of the court during those tumultuous years and describes the level of change enacted by the courts. I think the book can really show people how much faith we can still put in our justice system.
8.4.2009 9:39pm
Volokh Groupie:
@Tenrou

So even though a book states something that is widely acknowledged and has be rehashed repeatedly its ok for it to be a factually mistake ridden polemic as long as it encourages American to lose faith in the justice system?
8.4.2009 10:20pm
SuperSkeptic (mail):
does the nature of the Supreme Court, with an undefined number of justices and life tenure for each member, make it peculiarly archaic and more anti-democratic than necessary in our Republic? Has the Supreme Court worked greater ill in our society than necessary?

Devils Advocate: Keep the Court the same, life tenure for the Pres. What do you think about that?
8.4.2009 10:27pm
Vader:

Devils Advocate: Keep the Court the same, life tenure for the Pres. What do you think about that?


It would mean Carter would still be president today.

If that doesn't dispose of the proposal, nothing will.
8.4.2009 10:48pm
JohnO (mail):
What would you expect from Burns. I read a book of his that basically treated Kennedy as a reactionary.
8.4.2009 11:13pm
ChrisTS (mail):
Volokh Groupie:
Otherwise, this line from Burn's book:

"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."

strikes me as what one could get when you have politicians breaking the separation of powers protections and getting their hands on the court.


I thought libertarians and conservatives [generally] hate the independence of the courts - and The Supremes in particular.

I'm not a simple majoritarian - in fact, I appreciate it when the courts mitigate the excesses of the other two powers - but I do not understand the complaint that asking the courts to kowtow to the other powers is a violation of separation of powers.
8.5.2009 12:19am
/:
I thought libertarians and conservatives [generally] hate the independence of the courts - and The Supremes in particular.

That's exactly opposite from what people who favor a Constitution-abiding government think; the checks and balances of the three different branches are rather important parts of the functioning of the government (and that meant something more when State legislatures were taken seriously enough to appoint Senators). However, some people who want to abolish or ignore the Constitution enjoy what the court's been doing heavily the last half century, namely "judicial activism" or legislating from the bench. Those people use independence of the Judiciary Branch of government as an argument for activism, despite the fact that it's contrary to its core function. In that way, they confuse the two issues and argue against straw men; what they think their fantasy opponents want done with the Judiciary is for them to say.
8.5.2009 2:13am
David Hardy (mail) (www):
1) I wonder if there wasn't a little more consistency back then, in the sense that (and here I speculate) there wasn't a social conservative/liberal divide with one group trusting the government to run everything economic, and nothing else, and the other having the converse trust. I've done a little looking at McReynolds (and a little at a time is all I can stomach), and the guy seems to have been consistent in his distrust of government, esp. feds, whether on economic or "civil liberties" grounds. Wrote a great 4th Amendment dissent that would today be considered FAR liberal/left. Not to mention Pierce, and other decisions. OK, so he was the most obnoxious man in Washington, but at least he was consistent in distrusting the government to run economics, private schools, or search and seize bootleggers.

2) FDR may have had a historical precedent. In times of extreme pressure, recent British monarchs (which means the House of Commons squeezing the monarch's gonads) had threatened to deal with an assertion of power by the Lords (i.e., to stop legislation) by appointing enough new Lords, who happened to agree with Commons, to constitute a majority. The Lords invariably backed down and voted their power away.
8.5.2009 2:43am
MarkField (mail):
Good point about the English precedent. That happened just before WWI (about 25 years before the "court packing" plan), and FDR was surely aware of it.
8.5.2009 9:47am
deepstblu (mail):
Taft, a one-term president, got to appoint six justices? Wow. I will be looking into those circumstances when I get time.
8.5.2009 9:47am
David M. Nieporent (www):
What's illegitimate about changing the number of justices on the Supreme Court? Roosevelt was different only in that he failed at it, unlike (for example) Lincoln. And it's not a one-way street, Congress passed a veto-proof act reducing the number of justices fromn 10 to 9 so that A. Johnson would not get a nomination.
There's nothing illegitimate about changing the number of justices on the Supreme Court, although 9 had been pretty well firmly established as a reasonable number for seventy years. But FDR's proposal didn't simply change the size of the Court; it didn't say, "You know, we think 15 is a better number than 9." It was premised on the notion that 9 was fine, unless judges voted against FDR, in which case he got to appoint someone to nullify their votes.
8.5.2009 10:19am
The Court's Friend:

Taft, a one-term president, got to appoint six justices? Wow. I will be looking into those circumstances when I get time.

Taft appointed Edward D. White Chief Justice and

Horace H. Lurton
Charles E. Hughes
Willis Van Devanter
Joseph R. Lamar
Mahlon Pitney

Associate Justices.
8.5.2009 10:24am
DavidBernstein (mail):
And the Taft Justices dominated the Court during its most "Progressive" period before the New Deal, and was widely praised in Progressive circles at the time. This Court also issued a series of opinions broadly sympathetic to African-American rights, over the consistent objection of Holmes. So much for "stout" (staunch?) conservatives.
8.5.2009 10:43am
Smooth, Like a Rhapsody (mail):
And needless to say, abolishing judicial review would not cure ills like that the Court "tolerated the suppression of dissent and endorsed the internment of more than 100,000 Japanese-Americans during World War II," since those policies originated with legislative and/or executive branches.

Ironic that one of the "executive" officials who ram-rodded this program was Earl Warren, he of sainted memory.
But who needs history when you have political science in back of you?
8.5.2009 11:09am
Gabriel McCall (mail):
If we're going to play "the Constitution doesn't say" in order to consider packing the SC, couldn't the Chief Justice have simply responded that the Constitution also doesn't require that the court hear all cases en banc, and hand-picked smaller panels as he saw fit to hear the cases being brought?
8.5.2009 12:16pm
MarkField (mail):

This Court also issued a series of opinions broadly sympathetic to African-American rights


It would be more accurate to say that the Court (assuming you mean the one dominated by Taft appointees) issued a couple of decisions mildly helpful to African-American rights. This is not to praise the Progressives, many of whom were quite racist, it's just a fact the Court wasn't much help on civil rights until the '30s, by which time most of Taft's appointees were gone.
8.5.2009 12:24pm
DavidBernstein (mail):
Broadly sympathetic, but only mildly helpful (which is really all they could be with no support or follow up from the political branches). Both are true. And quite "liberal" given the historical circumstances, and the opposition of Progressives to some of these decisions, especially Buchanan v. Warley.
8.5.2009 2:08pm
James Gibson (mail):
History is what you make of it. If any of you have been reading the news articles on Prop 13 you would have learned that Earl Warren was a progressive and he was the Liberal Governor of California through the 1950s until Pat Brown. If you read a history book we was the Republican Governor of California in the 1940s, who ran as the VP candidate with Dewey against Thruman in 1948, and was selected by Eisenhower for the Supreme Court in 1953. Inconvenient facts to say the least.
8.5.2009 2:10pm
DavidBernstein (mail):
There's no contradiction between being a Progressive and being a Republican circa 1948. Republicans had a long Progresive tradition, including Theodore Roosevelt, Robert LaFollette and even Herbert Hoover. Even after 1952 think of, e.g., Senator Jacob Javitz.
8.5.2009 2:33pm
MarkField (mail):
I don't follow James Gibson's post either. Warren was not governor of CA after 1953; Pat Brown began his first term six years later in 1959. Whether Warren was a liberal or not is kind of subjective -- he was nominated by both parties in 1946 (and the Progressive Party as well!).

The Progressive movement had supporters in both parties.
8.5.2009 3:37pm
davod (mail):
"I always understood that McReynolds hated Cardozo because Cardozo was a Jew."

I thought it was because Cardozo was the courts first Hispanic.
8.5.2009 4:29pm
MarkField (mail):
davod FTW.
8.5.2009 4:32pm
Gordo:
I suspect that Justice Harlan is referred to as a "liberal" not only for his famous Plessy v. Ferguson dissent, but also for his dissent to the odious Lochner decision, which included these words:

If the end which the legislature seeks to accomplish be one to which its power extends, and if the means employed to that end, although not the wisest or best, are yet not plainly and palpably unauthorized by law, then the court cannot interfere.
8.5.2009 6:03pm
davod (mail):
MarkField:

What does FTW mean?
8.6.2009 6:16am
David M. Nieporent (www):
What does FTW mean?
It means "For the win." It's a compliment.
8.6.2009 1:50pm

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