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

by James Macgregor Burns

  From the Civil War to World War II and the Cold War, that fear had inhibited the Supreme Court from defending individual rights against questionable claims of military necessity. Yet four times in four years, and with increasing severity, the court had struck down the attempts of George Bush and Dick Cheney to fashion a legal black hole in which to throw their captives, rejecting each effort the president made to meet its objections. In part, it was the formless character of the “war on terror” that emboldened the justices. That war had no fixed battlefield, no definition of victory, and no end in sight. As Souter noted in his Boumediene concurrence, many of the detainees, including Lakhdar Boumediene, had already been “locked up for six years” in a constitutional limbo, with the administration asserting—but refusing to prove—that they were guilty of crimes or that their imprisonment was a military necessity.

  Even more, it was the extreme and persistent claims of Bush and Cheney for almost limitless and unaccountable presidential power that rankled the justices. The administration relied on a novel doctrine of “inherent executive powers that are unenumerated in the Constitution” to make “the President alone” responsible for deciding how, in all respects, to defend national security. By acting on such assertions of centralized authority, Bush and Cheney invited a rebuke, if not from Congress, controlled until 2007 by the president’s own party and cowed by the administration’s relentless fearmonger ing, then by a court that for two hundred years had reserved to itself the right and duty “to say what the law is.” It was a collision waiting to happen, a great, historic clash of powers. And in the end, in the 5-4 decision of Boumediene, one vote, falling as it did, had greater force than the claims of the president and vice president and their armies of lawyers. One vote.

  EPILOGUE

  Ending Judicial Supremacy

  BARACK OBAMA understood the weight of that one vote. Few presidents had scrutinized the Constitution and the powers of its judicial “third branch” more closely than Obama had before entering the White House. As the first African-American president of the Harvard Law Review, he had debated the work of the Founders with his fellow editors. As a professor of constitutional law at the University of Chicago, he had delighted in opening students’ eyes to a Constitution that was, as he wrote in his 2006 book, The Audacity of Hope, “a part not just of the past but of their present and their future.”

  Befitting a scholar of the ambiguities and potentialities of that charter, Obama’s view of the Constitution was complex and nuanced. The Founders, he maintained in The Audacity of Hope, had gotten it “incredibly right” when they established a framework for “deliberative democracy.” By rejecting “all forms of absolute authority,” they required citizens “to engage in a process of testing their ideas against an external reality, persuading others of their point of view, and building shifting alliances of consent.” But that democratic conversation broke down, he noted, “over the one subject the Founders refused to talk about”—slavery. The Constitution had provided “no protection to those outside the constitutional circle” such as black Americans like Dred Scott, “who would walk into the Supreme Court a free man and leave a slave.”

  If the Constitution created a structure for democratic deliberation and popular decision, the task of the Supreme Court, Obama believed, was to serve as the keeper of the rules—to preserve and extend the vibrancy of that conversation and to ensure that all Americans had an equal voice in it. The court’s role, in other words, was to oversee processes, not to dictate outcomes. In The Audacity of Hope, Obama rejected the “originalism” of justices like Scalia and Thomas. The Founders, he wrote, told us only “how to think,” not “what to think.” The Constitution was “not a static but rather a living document, and must be read in the context of an ever-changing world.” Its meaning was political, emerging ultimately from democratic competition in the marketplace of ideas.

  By vanquishing Republican John McCain in the presidential election of 2008—and with substantial Democratic gains in Congress—Obama could claim a victory in the battle of ideas. Americans had rejected the conservative dogmas of unrestricted laissez faire and severely limited government. Instead of rampant, unregulated economic competition, Obama emphasized inclusion, equal opportunity, and collective action, values that, he promised, would be reflected in his nominations to the Supreme Court. As senator, he had opposed Bush’s two court appointments because John Roberts and Samuel Alito had consistently sided with the powerful against the powerless. As a presidential candidate, Obama vowed to name justices who had real-life experience and understood “what it means to be on the outside, what it means to have the system not work for them.” He wanted, he told voters, “people on the bench who have enough empathy, enough feeling, for what ordinary people are going through.”

  As Barack Obama took office, ordinary people were going through a wave of economic insecurity unprecedented since the Great Depression of the 1930s. Rising inequality, job losses, collapsing home values, heavy consumer indebtedness, skyrocketing health care costs, as well as the looming dangers of global climate change—all these had created a crisis of faith among Americans over the country’s direction, over the government’s willingness to act on behalf of ordinary Americans, and over their own future prospects. Elected on a platform of wide-ranging change, amid calls for a “new New Deal,” confronted with a Republican opposition that spurned his summons to bipartisan cooperation in the crisis, President Obama faced the most daunting challenges, but also an extraordinary opportunity for transforming leadership. Would he seize it? If he did, would the Supreme Court obstruct him as it had Franklin Roosevelt seventy-five years before?

  Beneath the clamor over heated social issues like abortion and homosexuality and the battles over civil rights and liberties, the Supreme Court of William Rehnquist and John Roberts had quietly been laying the groundwork for confrontation with a president and Congress elected on a platform of change. Over the previous two decades, the justices had undertaken a remarkable but little-noticed transformation in their rulings on economic issues, a slow reversal of the “constitutional revolution” of 1937, when the court had abruptly and at long last acknowledged the authority of the elected branches of government to regulate the economy. Through a widening stream of pro-business decisions in such areas as environmental regulation, equal pay and union rights, health care and retirement benefits, and a host of others, the Supreme Court stripped power from the political branches and from consumers and workers and shareholders to hold corporations and their executives to account. The court joined the elite, turn-of-century consensus that trumpeted the virtues of the free market and dog-eat-dog competition whose benefits supposedly would trickle down to hard-pressed working men and women and impoverished families. It was not only the court’s powerful conservative phalanx that led the campaign to “repeal the 20th Century,” as journalist Simon Lazarus put it. “Liberal” justices like Stephen Breyer and David Souter were little less hostile to restraints on business and finance. The court was in fact heavily packed with formidable free-marketeers.

  A president armed with a mandate for change, committed to a new New Deal in a time of dire wants and needs, might again confront a Supreme Court that would ignore the election returns and resume the court’s historic role as a choke point for progressive reforms. Once again, it would be less a battle between judges and elected officials than a conflict between leaderships. A Supreme Court tenacious of its supremacy built up over centuries from its roots in John Marshall’s Marbury decision might oppose a president and Congress determined not only to protect their legislative achievements but also to settle at last the continuing constitutional struggle over leadership in American democracy.

  THE SUPREME COURT’Slong supremacy over the Constitution has often led Americans to look to the justices for leadership in times of uncertainty and strain. It has led them to identify the court with the strength of the constitutional order and of the nation itself. And indeed, without John Marshall’s de
termination to establish national authority against the ideologues of states’ rights, and his insistence on the supremacy of constitutional law, the United States might have become far less unified. The idea of union to which Lincoln appealed in the fury and violence of civil war had its origins in the minds of George Washington and James Madison and other authors of the Constitution, but to a remarkable degree, it took shape and gathered force in the opinions of John Marshall during his three-decade domination of the Supreme Court. Because we have come to take that union for granted, the authority of the court has come to be seen as intrinsic and essential to it. Two centuries later, the Supreme Court continues to draw on the credit of John Marshall’s nation-building.

  Americans have also regarded the Supreme Court as the ultimate guardian of their civil rights and liberties, and the defender of individuals against government oppression, of powerless minorities against majorities. That image is a far more recent one and owes much to the leadership of another great chief justice, Earl Warren. Despite the concerted assaults of half a century, the legacy of his jurisprudence remains, as reflected in the court’s bold decisions striking down George W. Bush’s abuses of executive power and upholding the rights of detainees. The idea of the court as friend to the weak and powerless lingers. Yet, as we have seen, for much of its history, the Supreme Court has more often been indifferent to the wants and needs of the great majority of Americans. It has wielded its supremacy over the Constitution to deny them economic and political power. Too often, the court has been fighting history. As political scientist Philippa Strum has argued, “at every stage of the Court’s existence,” there have been justices “who refused to recognize that the meaning of the Constitution as written in 1787 had to change if it was to be applicable to the society of 1837, the ones who insisted that employers but not employees had legally protected economic rights when unions were already gaining political power, the ones who steadily maintained that the federal government could not enact broad social and economic statutes even as the welfare state was becoming a reality, the ones who could not understand that the urbanites, the non-whites, the women, the poor, the aged, the handicapped, the students, were all mobilizing in an unstoppable assault on the bastions of power.”

  Indeed, over the course of the Supreme Court’s long history, the leadership of a Marshall or a Warren has been a luminous exception to the rule. In retrospect, the court has far more often been a tool for reaction, not progress. Whether in the Gilded Age of the late nineteenth century or the Gilded Age at the turn of the twenty-first, the justices have most fiercely protected the rights and liberties of the minority of the powerful and the propertied. Americans cannot look to the judicial branch for leadership. They cannot expect leadership from unelected and unaccountable politicians in robes.

  I F POLITICAL LEADERS are to effectively challenge the court’s supremacy and assert their own constitutional leadership, they must learn from the failures of the past. None of the many attempts to “curb the court” has succeeded, beginning with Jefferson’s abortive impeachment campaign against Federalist justices. Tinkering with the numbers of justices, as politicians have attempted repeatedly, has done nothing to blunt the court’s rise to constitutional supremacy. Efforts to inject accountability into judicial decision-making, by TR’s idea of popular votes on the recall of decisions—or even of the justices themselves—have gotten nowhere. Initiatives to eliminate life tenure have been stillborn. Nor have proposals to temper the Supreme Court’s power of judicial review had more success, whether by requiring a “supermajority” of justices for decisions to strike down federal laws, or by granting Congress, as John Marshall himself had suggested, the authority to override “opinions deem’d unsound by the legislature.” Generations of reformers have urged—vehemently and in vain—the simple abolition of judicial review altogether.

  Such proposals for change have never succeeded because they have never mobilized a large number of Americans behind them. Moreover, most have faced a daunting obstacle—the tortuous process of constitutional amendment.

  There is another alternative, a momentous and even more daring and inspiring one. It would strike at the very roots of the Supreme Court’s power while placing the burden of constitutional amendment on the supporters of judicial rule. It would be based on the fact that the Constitution never granted the judiciary a supremacy over the government, nor had the Framers ever conceived it. It would remind Americans that the court’s vetoes of acts of Congress are founded in a ploy by John Marshall that was exploited and expanded by later conservatives until the court today stands supreme and unaccountable, effectively immune to the checks and balances that otherwise fragment and disperse power throughout the constitutional system.

  Confronted by a hostile court repeatedly striking down vital 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 or she 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. The president would invite the partisans of judicial supremacy to try to write that authority into the Constitution by proposing a constitutional amendment. Through their representatives in Congress and the state legislatures, the American people would be given the choice denied them in 1803: to establish in the Constitution the power of judicial supremacy, or to reject that power. Only by this route could judicial rule be legitimated, “constitutionalized.” In the meantime, until the matter was settled, the president would faithfully execute the laws the Supreme Court had unconstitutionally vetoed.

  It would be a risky strategy, an open defiance of constitutional customs and the myths and mysteries that have long enshrouded the court. Traditionalists would be outraged. Professors of law would express their concern in learned treatises. Powerful interests with a stake in the status quo—business groups, conservative lawyers, and their supporters in the political class—would spearhead a campaign of opposition. There might even be demands for impeachment. In the ensuing turbulence, though, the president would have an enormous strategic advantage. He would need only to sit tight. The burden would be on his adversaries to initiate the new and momentous amendment to the Constitution and to obtain a mandate for judicial rule. For once it would be the foes of reform, not the reformers, who would have to go through the constitutional hoops of amendment, with all the traps and delays.

  Above all, it would be a test of leadership, of the president’s ability to mobilize followers behind a transformational goal, as FDR had so markedly failed to do in 1937. He would present the idea for what it was—a revolutionary challenge to judicial business-as-usual, to minority rule by a handful of judges, a fight for the Constitution as the people’s charter, not a lawyer’s contract. The president would make clear—and welcome the fact—that empowering the people to rule on judicial supremacy would set off a long, boisterous, and perhaps confusing debate on its role in twenty-first-century American democracy.

  If judicial rule was not ratified by the people in the amending process, the Supreme Court’s exclusive grip on constitutional interpretation would be broken. Shorn of its supremacy, the court would still retain crucial tasks. It would still be called upon to interpret ambiguous statutes, adjust conflicting laws, clarify jurisdictions, and police the boundaries of federal-state power—virtually all of its present responsibilities except that of declaring federal laws unconstitutional. It would simply be brought closer to the role the Framers originally envisioned for it.

  As constitutional leadership passed to the political branches, the nation’s elected officials would bear the heavy and unshirkable duty to ensure that their acts were compatible with the Constitution. Without Supreme Court review or oversight, each branch would be constrained by the checks and balances already inscribed in the Constitution. But unlike the Supreme Court, whose supremacy lacks any constitutional basis, political leaders dra
w their authority from the charter’s most fundamental principle—the sovereignty of the people. Their ultimate accountability is at the ballot box, where they face the judgment of their fellow citizens.

  DOES ALL THIS seem alarming, un-American? Not if we realize that judicial rule, as it has emerged in fits and starts over two centuries to reach its modern-day pinnacle, is alien to the constitutional design. It invokes what legal scholar Edward S. Corwin, writing at the peak of FDR’s battle with the Hughes Court, called a “miracle” that “supposes a kind of transubstantiation whereby the Court’s opinion of the Constitution . . . becomes the very body and blood of the Constitution.”

  There is nothing miraculous about majority rule—it is the essence of democratic constitutionalism. It is true that Americans have long feared “naked majority rule” that would force big changes by slender majorities and threaten minority rights. The need to restrain runaway majorities has often been used to justify judicial supremacy, even though the Supreme Court has used that authority to protect entrenched interests—minorities, to be sure, but powerful ones—at the expense both of popular majorities and of powerless minorities. In fact, the constitutional structure of the Founders, from its system of checks and balances to the Bill of Rights, provides a host of protections for minorities. And, as James Madison foresaw, building a political majority in a large and diverse nation calls for endless accommodations by factions and regions, producing compromise and broad consensus. Indeed, majority rule in the United States takes a curious form—“majorities rule”—with president, Senate, and House responding to diverse national, state, and local constituencies. The abolition of judicial supremacy by the presidential challenge described above would open the way for a more potent majority rule that would reflect the needs of most of the people without destroying the rights of the minority to keep that majority under constant and critical surveillance.