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

by James Macgregor Burns

  Majorities, to be sure, can make dreadful mistakes, as we have seen in numerous presidencies and Congresses from John Adams to Bush II. But the Supreme Court makes bad and even dangerous decisions too, whether in ratifying the abuses of the political branches, as in Korematsu or the anti-Communist frenzy after World War II, or on its own initiative when it usurps political responsibility, as in Dred Scott and Bush v. Gore. Legislative majorities, moreover, can correct their errors in the next session or after the next election, while the court has taken decades—or nothing less than a civil war—to reverse itself. That is because presidents and legislators have to report back to the people; the justices do not.

  The duty of an empowered majority is to lead. It is the responsibility of the minority to oppose, but not to obstruct—and much less to veto, as the Supreme Court regularly does—the acts of the majority. The British parliamentary system is the classic demonstration of this relationship. The party that wins a general election takes over the House of Commons. The defeated party might use a second chamber, the House of Lords, only to delay. In the Commons, the opposition sits on the bench across, with no power except to ask biting questions and propose alternatives, while preparing for the next election, when it might win its own majority. There is no equivalent to the American Supreme Court, no ultimate interpreter of the British constitution outside of Parliament. The British system, like other democracies, has its failings, but the power of a minority to thwart leadership by the majority is not one of them.

  Still, an amorphous electoral majority is not sufficient in itself to produce broad economic and social change. Even apart from the Supreme Court’s unconstitutional assertions of supremacy, the American checks-and-balances system, its separation of powers, has tended to obstruct the kind of transforming leadership that the empowerment of a majority should make possible. From the start, American politicians have sought to overcome these obstacles by converting their majority into a unified political party, as Thomas Jefferson and James Madison did with their Republicans in the 1790s. Much was made of Barack Obama’s grassroots mobilization of voters in 2008 and his skill in attracting masses of disaffected voters to the polls, but as president, Obama faced the crucial test of whether he could convince his followers to give decisive backing to transformational initiatives.

  Far more often, American presidents and legislators have had to act effectively as transactional leaders—brokers, negotiators, coalition-builders—to produce slow and incremental change. For them, as political scientist Keith Whittington has written, “constitutional disputes are more likely to be a distraction than an opportunity,” a source of unnecessary conflict. They have willingly and even eagerly left such disputes to the Supreme Court. “For such beleaguered politicians, the heightened judicial authority to say what the Constitution means is a respite from the responsibility and burdens of leadership.”

  But leaders with transformational aspirations actively assert constitutional leadership. Empowered by new and insurgent majorities, backed by disciplined parties, thriving on conflict, presidents like Jefferson and Jackson, Lincoln and Franklin Roosevelt, have clashed with justices who refused to recognize the claims of the new majority while fiercely protecting the “minority rights” of discredited parties, interests, and ideologies. To an astonishing degree in a democracy, the Supreme Court has prevailed in these struggles for power, checkmating the popular will with its absolute veto. Against such a court armed with the dogma of its own supremacy, presidents often could win only by waiting for the next turn of the judicial roulette wheel.

  THE ULTIMATE outcome of a grand national debate and decision on judicial supremacy would turn on people’s capacities to relate institutions and their powers to the historic national values that are the engines of leadership and change. The essence of those values lies not in the 1787 Constitution, which mainly allots specific powers to specific institutions, but in the glowing phrases of the Declaration of Independence of 1776. In proclaiming “life, liberty and the pursuit of happiness,” Jefferson and his fellow revolutionaries not only summarized in a few words what Americans were fighting for, but enunciated principles that have divided the nation since the Founding.

  Leadership emerges from the conflict over core principles. The strongest appeal leaders can make to potential followers is by addressing their real wants and needs in terms of values. By mobilizing followers behind transforming goals, they generate the political force to surmount obstacles in pursuit of deep and enduring change. The presidency, Franklin Roosevelt said in 1932, was more than an administrative or engineering job. “It is preeminently a place of moral leadership,” he declared, especially “at times when certain historic ideas in the life of the nation had to be clarified.” Throughout our history and especially today, conservatives have defined “life” as security from internal and external threats, “liberty” as protection against intrusive and oppressive government, and “the pursuit of happiness” as the removal of impediments to individual opportunity and fulfillment. Liberals have sought to push these three values beyond such negative conceptions to a positive role for government in nurturing political, economic, and social equality—from Lincoln’s Constitution, with its lost promise to secure the equal rights of freed slaves, to FDR’s Four Freedoms, which included freedom from want, to Lyndon Johnson’s Great Society war on economic and social inequality.

  These fundamental differences over the meaning of America’s founding values have for two centuries been a driving force for the creative conflict between two major parties that vitalizes democracy. But deference to a court with extraconstitutional powers to summarily settle controversies over constitutional values has too often sapped our democracy of its vitality. It has too often muted the voice of the people in what Barack Obama termed the essential democratic conversation. It has closed off avenues to desperately needed change.

  John Marshall was wrong: it is emphatically the province and duty of the American people, not of the nine justices of the United States Supreme Court, to say what the Constitution is. A national reappraisal of the all-powerful court chosen by judicial roulette is crucial if American democracy is to meet the rising challenges of the twenty-first century.

  THE JUSTICES OF THE SUPREME COURT

  ACKNOWLEDGMENTS

  Professor Susan Dunn offered a searching and constructive review of the manuscript of this book based on her deep immersion in American political history. Philippa Strum and Bennett Boskey gave the manuscript the benefit of their long and extensive study of the Constitution and the Supreme Court. By generously sharing their knowledge and insights, all three readers helped me to refine my ideas about the court’s role in American democracy.

  I am also grateful to my agent, Ike Williams, and his assistant, Hope Denekamp, for backing the work and vigorously launching it toward publication.

  Laura Stickney, my editor, deserves special gratitude for her unwavering faith in the significance of this project. Her keen eye and wise suggestions improved the text in countless ways. She and her colleagues at Penguin Press were a pleasure to work with.

  As she has before, Robin Keller of the Faculty Secretarial Office at Williams College helped to make communications between author and publisher smooth and easy.

  The staff of Sawyer Library at Williams, and especially Alison O’Grady, the head of the Interlibrary Loan Department, offered indispensable assistance as I researched this work. The archives of the Franklin D. Roosevelt Presidential Library in Hyde Park, New York, afforded me the opportunity to dig deeply into the background of FDR’s confrontation with the Supreme Court. Its director, Cynthia Koch, was most welcoming, and Robert Clark, the library’s supervising archivist, generously answered detailed questions before, during, and after my visit.

  Finally, this book would not have been possible without the critical and constructive participation of Milton Djuric at every stage of the work.

  NOTES

  CHAPTER ONE-THE FIRST COURTPACKERS

  Jo
hn Agresto, The Supreme Court and Constitutional Democracy (Cornell University Press, 1984), chs. 2-3.

  Bernard Bailyn, ed., Debate on the Constitution, 2 vols. (Library of America, 1993).

  Wilbourn E. Benton, ed., 1787: Drafting the Constitution, 2 vols. (Texas A& M University Press, 1986).

  William R. Casto, The Supreme Court in the Early Republic: The Chief Justiceships of John Jay and Oliver Ellsworth (University of South Carolina Press, 1995).

  Susan Dunn, Jefferson’s Second Revolution: The Election of 1800 and the Triumph of Republicanism (Houghton Mifflin, 2004).

  Stanley Elkins and Eric McKitrick, The Age of Federalism (Oxford University Press, 1993).

  Jonathan Elliot, ed., The Debates in the Several State Conventions on the Adoption of the Federal Constitution, 5 vols., 2nd ed. (1836; reprinted by J. B. Lippincott, 1937).

  Paul Leicester Ford, ed., Pamphlets on the Constitution of the United States (1888; reprinted by Da Capo Press, 1968).

  Landa M. Freeman, “Mr. Jay Rides Circuit,” Journal of Supreme Court History, vol. 31, no. 1 (March 2006), pp. 18-27.

  Leon Friedman and Fred L. Israel, eds., The Justices of the United States Supreme Court, 1789 -1969 (Chelsea House, 1969-78), vol. 1.

  Scott Douglas Gerber, ed., Seriatim: The Supreme Court Before John Marshall (New York University Press, 1998).

  Julius Goebel, Jr., Antecedents and Beginnings to 1801, vol. 1 of History of the Supreme Court of the United States (Macmillan, 1971).

  Leslie F. Goldstein, “Popular Sovereignty, the Origins of Judicial Review, and the Revival of Unwritten Law,” Journal of Politics, vol. 48, no. 1 (February 1986), pp. 51-71.

  Charles Grove Haines, The American Doctrine of Judicial Supremacy, 2nd ed. (University of California Press, 1932).

  Charles Grove Haines, The Role of the Supreme Court in American Government and Politics, 1789 -1835 (University of California Press, 1944).

  George Lee Haskins and Herbert A. Johnson, Foundations of Power: John Marshall, 1801-15, vol. 2 of History of the Supreme Court of the United States (Macmillan, 1981).

  James Haw, John and Edward Rutledge of South Carolina (University of Georgia Press, 1997).

  James Haw et al., Stormy Patriot: The Life of Samuel Chase (Maryland Historical Society, 1980).

  Merrill Jensen et al., eds., The Documentary History of the Ratification of the Constitution, 21 vols. (State Historical Society of Wisconsin, 1976- ).

  Larry D. Kramer, The People Themselves: Popular Constitutionalism and Judicial Review (Oxford University Press, 2004).

  Philip B. Kurland and Ralph Lerner, eds., The Founders’ Constitution, 5 vols. (University of Chicago Press, 1987).

  Maeva Marcus and James R. Perry, eds., The Documentary History of the Supreme Court of the United States, 1789 -1800, 9 vols. (Columbia University Press, 1985-2007).

  David McCullough, John Adams (Simon & Schuster, 2001).

  John C. Miller, The Federalist Era, 1789 -1801 (Harper & Brothers, 1960).

  James R. Perry, “Supreme Court Appointments, 1789-1801: Criteria, Presidential Style, and the Press of Events,” Journal of the Early Republic, vol. 6, no. 4 (Winter 1986), pp. 371-410.

  Jack N. Rakove, “Judicial Power in the Constitutional Theory of James Madison,” William & Mary Law Review, vol. 43, no. 4 (March 2002), pp. 1513-47.

  James F. Simon, What Kind of Nation: Thomas Jefferson, John Marshall, and the Epic Struggle to Create a United States (Simon & Schuster, 2002).

  James Morton Smith, Freedom’s Fetters: The Alien and Sedition Laws and American Civil Liberties (Cornell University Press, 1956).

  Page Smith, James Wilson, Founding Father, 1742 -1798 (University of North Carolina Press, 1956).

  Kathryn Turner, “Federalist Policy and the Judiciary Act of 1801,” William and Mary Quarterly, 3rd ser., vol. 22, no. 1 (January 1965), pp. 3-32.

  Kathryn Turner, “The Midnight Judges,” University of Pennsylvania Law Review, vol. 109, no. 4 (February 1961), pp. 494-523.

  7 [“toilsome Journies”] : August 9, 1792, reprinted in Marcus and Perry, vol. 2, pp. 289-90, quoted at p. 290.

  8 [“strange disorder”] : Blair to his sister, letter of July 5, 1799, in Fred L. Israel, “John Blair, Jr.,” in Friedman and Israel, vol. 1, pp. 109-15, quoted at p. 115; see also letter to George Washington, October 25, 1795, in Marcus and Perry, vol. 1, part 1, p. 59.

  8 [“Key-stone”] : Washington to John Jay, letter of October 5, 1789, in Marcus and Perry, vol. 1, part 1, p. 11.

  8 [Supreme Court cases in first four years] : Casto, pp. 54-55.

  8 [“superiority of the judicial”] : Hamilton, The Federalist No. 78, in Jacob E. Cooke, ed., The Federalist (Wesleyan University Press, 1961), pp. 521-30, quoted at pp. 525, 523, respectively.

  9 [“various and unequal”] : Madison, The Federalist No. 10, in ibid., pp. 56-65, quoted at pp. 59, 58, 61, 64, respectively.

  10 [“In framing a government”] : Madison, The Federalist No. 51, in ibid., pp. 347-53, quoted at p. 349.

  11 [Convention setting] : Catherine Drinker Bowen, Miracle at Philadelphia (Little, Brown, 1966), pp. 23-24.

  11 [“intrigue, partiality”] : June 15, 1787, in Benton, vol. 2, p. 1315.

  12 [“servile dependence”] : debate in the Pennsylvania ratification convention, December 4, 1787, in Jensen et al., vol. 2, p. 495.

  12 [“independent of the people”] : Brutus XV, March 20, 1788, in ibid., vol. 16, pp. 431-35, quoted at p. 432.

  13 [“absolutely necessary”] : June 8, 1787, in Benton, vol. 2, p. 1459.

  13 [Mason on judiciary] : Mason, “Objections to the Federal Constitution,” November 11, 1787, in Jensen et al., vol. 14, pp. 149-52, quoted at p. 150.

  13 [“but where the Union”] : Iredell, “Answers to Mr. Mason’s Objections to the New Constitution” (1788), in Ford, Pamphlets, pp. 335-70, quoted at p. 343.

  13 [“swallowing up”] : James Wilson, August 15, 1787, in Benton, vol. 1, p. 821.

  13 [“unwise and unjust”] : James Madison, July 21, 1787, in ibid., vol. 1, p. 811.

  13 [“authority to examine”] : Resolution, May 29, 1787, in ibid., vol. 1, p. 792.

  13 [“improper mixture”] : John Dickinson, June 6, 1787, in ibid., vol. 1, p. 806.

  13 [“In some States”] : June 4, 1787, in ibid., vol. 1, p. 793.

  14 [“disapproved of the Doctrine”] : August 15, 1787, in ibid., pp. 819, 820, 821.

  15 [“interpretation or construction”] : Kent, “An Introductory Lecture to a Course of Law Lectures” (1794), in Charles Hyneman and Donald S. Lutz, eds., American Political Writing During the Founding Era, 1760-1805 (Liberty Press, 1983), vol. 2, pp. 936-49, quoted at p. 942.

  15 [“rights of private property”] : Beard, The Supreme Court and the Constitution (1912 ; reprinted by Paisley Press, 1938), pp. 92, 126.

  15 [“unprecedented act”] : John F. Dillon, “Address of the President” (1892), Report of the Fifteenth Annual Meeting of the American Bar Association (Dando Printing and Publishing, 1892), pp. 167-211, quoted at p. 203.

  15 [“exalted above all”] : Brutus XV, in Jensen et al., vol. 16, p. 431.

  16 [“within the limits”] : Hamilton, The Federalist No. 78, in Cooke, pp. 525, 523, respectively; see also Hamilton, The Federalist No. 81, in ibid., pp. 541-52, esp. p. 545.

  16 [“dangerous encroachments”] : Madison to Thomas Jefferson, letter of October 24, 1787, in Madison, Papers, Robert A. Rutland et al., eds. (University Press of Virginia/University of Chicago Press, 1962-91), vol. 10, pp. 206-19, quoted at p. 211.

  16 [“for the case of a disagreement”] : Madison, “Observations on Jefferson’s Draft of a Constitution for Virginia,” ca. October 15, 1788, in ibid., vol. 10, pp. 285-93, quoted at p. 293.

  17 [“chief Pillar”] : form letter to “Associate Justices of the Supreme Court,” September 30, 1789, in Washington, Writings, John C. Fitzpatrick, ed. (U.S. Government Printing Office, 1931-44), vol. 3, pp. 424-25, quoted at p. 425.

  18 [“altern
ate domination”] : September 19, 1796, in Washington, Writings, Worthington Chauncey Ford, ed. (G. P. Putnam’s, 1889-93), vol. 13, pp. 277-325, quoted at p. 303.

  19 [“like a wild beast”] : Smith, James Wilson, p. 387.

  20 [“insurrection, riot”] : reprinted in Smith, Freedom’s Fetters, pp. 441-42 (Appendix).

  20 [“constitutional difficulty”] : Ellsworth to Secretary of State Timothy Pickering, letter of December 12, 1798, quoted in Casto, p. 149.

  20 [“unbounded thirst”] : quoted in Smith, Freedom’s Fetters, p. 230.

  20 [“screen from scrutiny”] : ibid., pp. 250-51.

  20 [“I cannot suppress”] : quoted in Casto, p. 166.

  21 [“sowing sedition”] : quoted in Smith, Freedom’s Fetters, p. 267.

  21 [“political sentiments”] : ibid.

  21 [“There goes the President”] : ibid., p. 271.

  21 [“expressly and positively”] : Madison, “Virginia Resolutions,” December 21, 1798, in Madison, Papers, vol. 17, pp. 188-90, quoted at p. 189 ; for Jefferson’s draft of the Kentucky resolutions, see Jefferson, Writings, Merrill D. Peterson, ed. (Library of America Press, 1984), pp. 449-56.

  21 [“exclusively vested”] : “Resolution of the Vermont General Assembly,” October 30, 1799, reprinted in Elliot, Debates, vol. 4, p. 539.

  22 [“midnight judges”] : Haskins and Johnson, p. 126.

  23 [“the judicial authority”] : Madison, “The Report of 1800,” in Madison, Papers, vol. 17, pp. 307-50, quoted at pp. 311, 312.

  23 [“in our Governments”] : Madison to Thomas Jefferson, letter of October 17, 1788, in ibid., vol. 11, pp. 295-300, quoted at p. 298.

  23 [“there must be”] : Jefferson to Justice William Johnson, letter of June 12, 1823, in Jefferson, Writings, pp. 1469-77, quoted at p. 1476.