Tuesday, October 2, 2012

Packing the Court: The Rise of Judicial Power and the Coming Crisis of the Supreme Court, by James MacGregor Burns (author), Norman Dietz (narrator)

Tantor Media, ISBN 9781400162116, June 2009

This is an intentionally opinionated history of the Supreme Court of the United States of America.

Burns brings his considerable historical knowledge and literary skill to bear on what has sometimes been the most respected institution in American government, and at other times derided as partisan and backward-looking. As he traces its development from the words in the Constitution and the brilliant, energetic, ambitious, and forward-thinking John Marshall, through to today's Roberts Court, it becomes clear that Burns considers the latter view to be correct for most of the Court's history.

Certain bad Court decisions, such as Dred Scott, are well known, and I have a strong interest in American history. Despite that, I found much of the surprisingly sordid history of Court decisions turning the meaning even of the 14th and 15th Amendments on their heads, inventing a distinction between state and national citizenship, and applying "due process" and other procedural and substantive rights almost entirely to property and the regulation of economic activity, and reducing civil rights of individuals to almost nothing, to be a revelation.

The interplay between politics and the Court, and the persistent conservatism of the Court over decades and generations, even in the face of true national crises like the Great Depression, is disturbing and disheartening. When he reaches the Warren Court, Burns is in some respects downright gleeful, but also aware that it is the flip side of the intransigent Court that opposed Franklin Roosevelt's efforts to create legislation and take action that would alleviate and reverse the Great Depression. In both eras, the personalities and political views of the Justices, rather than the myth of dispassionate, high-minded jurisprudence,

As we proceed forward from the Warren Court to the current Roberts Court, once again a conservative Court with an easy willingness to strike down as "unconstitutional" progressive legislation,  Burns begins to lay out the polemical purpose of this book. He argues that the power of the Court to strike down legislation and to be the final arbiter of Constitutionality in all things, is unfounded in the Constitution or any supporting evidence of the intentions of the Founders, and that it has done more harm than good, threatening the foundations of democracy. His proposed solutions will sound radical to many, and certainly don't entirely agree with him myself. Nevertheless, even as a polemicist, Burns remains calm, rational, clear, and thoughtful, and this is an argument well worth reading and considering.


I borrowed this book from the library.

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