Packing the Court: The Rise of Judicial Power and the Coming Crisis of the Supreme Court

by James Macgregor Burns

  Table of Contents

  Title Page

  Copyright Page

  Dedication

  CHAPTER ONE - The First Courtpackers

  CHAPTER TWO - John Marshall ’s Constitution

  CHAPTER THREE - The Dred Decision

  CHAPTER FOUR - War Powers: Lincoln vs. Taney

  CHAPTER FIVE - Deconstruction: Republican Reversal

  CHAPTER SIX - A Court for the Gilded Age

  CHAPTER SEVEN - The Triumphant Mr. Taft

  CHAPTER EIGHT - F DR’s Boldest Gamble

  CHAPTER NINE - “ Wild Horses”: The Roosevelt Court

  CHAPTER TEN - Leadership: The Warren Court

  CHAPTER ELEVEN - Republicans as Activists

  CHAPTER TWELVE - Hard Right: The Cheney-Bush Court

  EPILOGUE

  Acknowledgements

  NOTES

  INDEX

  ALSO BY JAMES MACGREGOR BURNS

  Roosevelt: The Lion and the Fox

  John Kennedy: A Political Profile

  Deadlock of Democracy: Four-Party Politics in America

  Presidential Government: The Crucible of Leadership

  Roosevelt: The Soldier of Freedom

  Leadership

  The Vineyard of Liberty

  The Workshop of Democracy

  The Crosswinds of Freedom

  A People’s Charter: The Pursuit of Rights in America

  (with Stewart Burns)

  The Three Roosevelts (with Susan Dunn)

  Transforming Leadership: A New Pursuit of Happiness

  George Washington (with Susan Dunn)

  Running Alone: Presidential Leadership from JFK to Bush II

  THE PENGUIN PRESS

  Published by the Penguin Group

  Penguin Group (USA) Inc., 375 Hudson Street, New York, New York 10014, U.S.A. Penguin

  Group (Canada), 90 Eglinton Avenue East, Suite 700, Toronto, Ontario, Canada M4P 2Y3 (a division

  of Pearson Penguin Canada Inc.) Penguin Books Ltd, 80 Strand, London WC2R 0RL, England

  Penguin Ireland, 25 St. Stephen’s Green, Dublin 2, Ireland (a division of Penguin Books Ltd)

  Penguin Books Australia Ltd, 250 Camberwell Road, Camberwell, Victoria 3124, Australia

  (a division of Pearson Australia Group Pty Ltd) Penguin Books India Pvt Ltd, 11 Community

  Centre, Panchsheel Park, New Delhi-110 017, India Penguin Group (NZ), 67 Apollo Drive,

  Rosedale, North Shore 0632, New Zealand (a division of Pearson New Zealand Ltd) Penguin

  Books (South Africa) (Pty) Ltd, 24 Sturdee Avenue, Rosebank, Johannesburg 2196, South Africa

  Penguin Books Ltd, Registered Offices:

  80 Strand, London WC2R 0RL, England

  First published in 2009 by The Penguin Press,

  a member of Penguin Group (USA) Inc.

  Copyright © James MacGregor Burns, 2009

  All rights reserved

  LIBRARY OF CONGRESS CATALOGING-IN-PUBLICATION DATA

  Burns, James MacGregor.

  Packing the court : the rise of judicial power and the coming crisis of the Supreme Court /

  James MacGregor Burns.

  p. cm.

  Includes bibliographical references and index.

  eISBN : 978-1-101-08148-8

  1. United States. Supreme court—History. 2. Political questions and judicial power—United States.

  3. Judges—Selection and appointment—United States. I. Title.

  KF8742.B79 2009

  347.73’26—dc22 2009003987

  While the author has made every effort to provide accurate telephone numbers and Internet addresses at the time of publication, neither the publisher nor the author assumes any responsibility for errors, or for changes that occur after publication. Further, publisher does not have any control over and does not assume any responsibility for author or third-party Web sites or their content.

  Without limiting the rights under copyright reserved above, no part of this publication may be reproduced, stored in or introduced into a retrieval system, or transmitted, in any form or by any means (electronic, mechanical, photocopying, recording or otherwise), without the prior written permission of both the copyright owner and the above publisher of this book.

  The scanning, uploading, and distribution of this book via the Internet or via any other means without the permission of the publisher is illegal and punishable by law. Please purchase only authorized electronic editions and do not participate in or encourage electronic piracy of copyrightable materials. Your support of the author’s rights is appreciated.

  http://us.penguingroup.com

  FOR DAVID, STEWART, DEBORAH, ANTONIA

  PROLOGUE

  ONE DAY in February 1937, a fellow student at Williams College burst into my room holding a copy of the local newspaper. At first, I thought the banner headline trumpeted another crisis in Europe, but instead it was sensational news from Washington. President Franklin Roosevelt had just handed Congress a controversial proposal to pack the Supreme Court by enabling him to name up to six new justices, expanding the court’s size to fifteen. As more classmates flocked into my room, arguments erupted over the bill. Most of us with scholarships vehemently backed FDR, just as we had cheered his landslide reelection a few months before. We derided the Roosevelt haters in the more affluent “Gold Coast” dorm next door.

  We watched the ensuing political fight as closely as we would the World Series. We were sorry, most of us, when the “court-packing” bill went down to defeat in Congress. We were also puzzled. FDR made his proposal to change the Supreme Court because the conservative justices had killed one New Deal law after another, blocking the president’s efforts to lift the country out of the Great Depression. How could these justices, 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? Where did the court’s power to veto laws passed by Congress and signed by the president come from? A look at the Constitution’s Article III, where the judicial power is set out, revealed no mention of a Supreme Court veto over the elected branches.

  How could this be? We are all taught in school about the separation of powers, the checks and balances that give some veto power to the president and the houses of Congress. Could the great political and philosophical leaders who wrote the Constitution have wanted a judicial veto—a “judicial review” of legislation—without stating it? The authors of the Constitution were meticulous men, many of them lawyers. They knew exactly what they were doing—and not doing.

  There is no mystery. The Framers did not include a judicial veto in the Constitution because they did not want it. They would not grant that supremacy over the elected branches to a nonelected judiciary.

  The Supreme Court instead acquired its power through a brilliant political coup at the hands of Chief Justice John Marshall in 1803. It was Marshall who declared that it was the exclusive duty of the Supreme Court—not Congress and not the president—to say what the law is. The Constitution, Marshall insisted, was nothing more and nothing less than what a majority of the justices said it was. Building on Marshall’s dictum, the Supreme Court has, over the last two centuries, made itself the center of constitutional action. In doing so, it has distorted the intricate checks and balances the Framers believed were essential to the success of the American experiment.

  As the ultimate and unappealable arbiters of the Constitution, the justices of the Sup
reme Court have become far more than the referees in constitutional disputes that the Framers intended. They have gone beyond interpreting the rules—they have come to create them. From John Marshall to John Roberts, as the court has evolved from its makeshift quarters in New York City, the nation’s first capital, to its imperial courthouse in Washington, D.C., the justices have so successfully enlarged and consolidated the power of judicial review that they have become, in effect and often explicitly, lawgivers. And unlike the president and members of Congress, the policy-makers on the court don’t face the judgment of the voters for their actions. They are never held politically accountable to the American people.

  But neither has the Supreme Court been above politics. Most justices have been political activists—party politicos—before joining the court. Many have owed their elevation to party ties, as a reward for loyalty, with every expectation that they will not turn coat on the court. Justices might shed party labels when they take their seats on the bench—newspapers don’t print (R) or (D) after their names when reporting decisions—but, with some notable exceptions, they do not abandon their party doctrines. Instead, they become politicians in robes.

  No sooner did Americans begin to fashion the first political parties in the 1790s than the Supreme Court became a magnet for partisan conflict. From George Washington to George W. Bush, the opportunity for presidents to pack the bench with loyalists and so gain political and ideological control of this potent third branch has been irresistible. In this book I use the term “packing” in this general sense, to refer to the deliberate effort by the party in power—sometimes across several administrations and over decades—to use the presidential prerogative of appointing justices to ensure domination of the Supreme Court by its own partisans.

  Court-packing has been abetted by the life tenure the Constitution gives justices. The average tenure of Supreme Court justices since the nation’s founding has been more than fifteen years; since 1970, it has increased to more than twenty-six years. Justices throughout the court’s history have clung to their seats long after their political patrons have retired and long after their parties have yielded to their opponents or even disappeared. They have often perpetuated ideologies and attitudes that are outdated or that Americans have repudiated at the ballot box. Inevitably, life tenure has produced a critical time lag, with the Supreme Court institutionally almost always behind the times. As a result, too often the Supreme Court has seemed to be fighting the progress of history.

  The terms of elected officials are predictable, fixed by the Constitution. As of today, we know that, barring catastrophe, in 2020 or 2056, say, candidates for the presidency and Congress will be facing the judgment of voters. But the Supreme Court selection process is by nature unpredictable and erratic—America’s biggest wheel of fortune, with high stakes but uncertain payoffs. Everything depends on which justice may die or retire, when, and with what party controlling the presidency and the Senate. A one-term president like William Howard Taft may pack the Supreme Court with as many as six appointments and retain an influence there for decades, even though he loses reelection by a landslide. Another one-termer like Jimmy Carter may leave no justices behind him. Over the years, this judicial roulette has produced a jagged line of personal and political selections and made what might have been the most stable of branches the most unstable—as well as the most unrepresentative of all the people.

  THE AMERICAN constitutional system has no lack of obstacles to transforming leadership—the kind of leadership that sees the Constitution as the people’s charter, not, as Thomas Jefferson put it, “a mere thing of wax” in the hands of judges. Transforming leadership is mobilized by people’s real needs and shaped by the enduring American values of life, liberty, and the pursuit of happiness. It aspires to harness a majority of citizens behind deep and lasting change. For two centuries, such leadership has confronted—and rarely overcome—the unconstitutional obstacle of the judicial veto that can reduce Congress to helplessness and make bystanders of presidents. All too often, the Supreme Court has resisted even modest efforts to improve the lives of the great majority of Americans, to give them hope and opportunity. And at critical times, minority rule by a handful of jurists has threatened the nation’s welfare, as it did during the Great Depression, and even, in the crisis of the Civil War, its survival.

  Increasingly in this century, the Constitution will be fought over as a creative or destructive force in American democracy. Within a generation or two—perhaps much sooner—justices wielding the power of judicial supremacy will again confront a majority of the American people, in a political crisis of the same magnitude as the Civil War or the Great Depression. Transforming leadership will again face the conservative, obstructive authority of the high bench. Beyond the issue of the Supreme Court’s role in the American constitutional system, the crisis may pose the most fundamental question of all—who rules? Will it be “We, the People,” as the Founders of our nation intended, or will it be the nine justices of the Supreme Court? Americans must, as Theodore Roosevelt once said, reclaim their place as makers of their own Constitution.

  CHAPTER ONE

  The First Courtpackers

  GEORGE WASHINGTON was the first courtpacker. He had to fill the whole bench after Congress passed the Judiciary Act of 1789, which provided for a Supreme Court with a chief justice and five associates. By the end of his second term, the president had nearly packed the court twice over, with eleven appointments, nine in his first term alone. Justices were appointed for life, but judicial lives in the court’s early years were often short.

  The job back then was not all that appealing. There wasn’t much to do as cases slowly worked their way up from the lower courts, and the justices spent most of their time traveling. Every spring and fall, they served as trial and appellate judges in the three federal circuits. Almost from the beginning, they begged Congress for relief from an onerous duty that, as they wrote in a 1792 “memorial,” required “toilsome Journies through different climates and seasons,” passing “the greater part of their days on the road, and at Inns, and at a distance from their families.” The circuits ranged from New Hampshire to Georgia. Justices assigned to the southern circuit would travel nearly two thousand miles twice yearly. One of them, Thomas Johnson of Maryland, quit the court after little more than a year to escape the excessive fatigue of circuit riding. It shattered the health and sanity of Justice John Blair. By the time he retired to Virginia in 1796, he was afflicted with chronic headaches and complained of a “strange disorder” that deprived him of “nearly all the powers of mind.”

  Others grew restless and left for better jobs. John Jay, the Supreme Court’s first chief justice, ran for governor of New York in 1792 while sitting on the bench. He lost, but—never mind the separation of powers—President Washington sent him as special envoy to England to negotiate a settlement of disputes lingering from the Revolutionary War. The chief justice never attended a session of the court after 1793. While he was abroad, New York elected him governor, and in 1795, he resigned from the court to take the job.

  Seeking recruits for the new Supreme Court, Washington had touted the judicial department as “the Key-stone of our political fabric,” but the early court showed little evidence that it would assume that role. In its first four years, it heard only a dozen cases, few of any significance. Its jurisdiction as the ultimate appeals court was ill defined even though Congress had tried in its Judiciary Act to fill in the blanks created by the Constitution’s broad phrases. The early court was mainly a bystander to the furious political controversies that had begun to wrack the new nation. Far from threatening what some had feared as “a superiority of the judicial to the legislative power,” the court in its first years was so deferential to—and dependent upon—Congress and the president that it appeared to be, as Alexander Hamilton had warned, “in continual jeopardy of being overwhelmed, awed or influenced by its coordinate branches.” At the heart of the Constitution was its system of ch
ecks and balances. Would the Supreme Court be able to hold its own against the constitutional and political resources of Congress and the presidency?

  THE DAUNTING CHALLENGE of the Framers who invented the republic in 1787 had been to establish “government by the people” that would protect both the people from the government and government from the people. They wanted to overcome the infirmities of the Articles of Confederation, which had preserved extensive authority for the thirteen states by denying the central government powers to promote and defend the nation as a whole. But the Framers also wanted to guarantee that the new national government—or any one part of it—would not become too strong. They feared that it might be dominated by an “aristocratic” oligarchy or take on a “monarchical” cast. They also feared that it would be overrun by rampant popular majorities—“mob” rule that would crush minority rights.

  The Framer who had led in solving the complex dilemma of a strong and efficient but limited national government was James Madison, whose ideas were grounded in a deep and realistic grasp of human nature. An obstacle to oppressive majority rule, he foresaw, was the fragmentation of people into factions, formed around geographical, religious, and myriad other differences—above all, those of class, rising from “the various and unequal distribution of property.” Such divisions were, Madison wrote in the Federalist papers, “sown in the very nature of man.” In the concentrated polities of the states, they could be decisive, producing either anarchy, as powerful factions clashed inconclusively, or, where a single faction predominated, oligarchies or untamed majorities that would “sacrifice the weaker party.” But under the wider sphere of the nation, with “a greater variety of parties and interests,” the ills of faction would be tempered, while providing essential insurance that the central government would not be dominated either by a narrow elite or by a popular mass.