Packing the Court

By James Macgregor Burns

Subjects: United states, supreme court, Judges, Selection and appointment, United States, Political questions and judicial power, Judicial power, History, United States. Supreme Court

Description: This is a critique of how an unstable, unaccountable, and frequently partisan Supreme Court has come to wield more power than the founding fathers ever intended. In this book the author turns his eye to an institution of government that he believes has become more powerful, and more partisan, than the founding fathers envisioned, the Supreme Court. Remarkable as it might seem today, the framers did not intend the Supreme Court to be the ultimate arbiter in all constitutional issues, and instead foresaw a more limited role for the highest court in the land. As the author reminds us, the Constitution does not grant the Supreme Court the power of judicial review, that is, the authority to strike down laws passed by Congress and signed by the president. And yet from John Marshall to John Roberts, Supreme Court justices have used this power to obstruct the acts of presidents and Congress, often derailing progressive reform as a result. In doing so, he argues, they have disrupted the system of checks and balances so carefully enshrined in our Constitution. The term "packing the court" is most commonly applied to Franklin Roosevelt's failed attempt to expand the size of the court after a conservative bench repeatedly overturned key New Deal legislation, effectively blocking his efforts to fight the Great Depression. But the author shows that FDR was not the only president to confront a high court that seemed bent on fighting popular mandates for change. Many of our most effective leaders, from Jefferson to Lincoln to the two Roosevelts, have clashed with powerful justices who refused to recognize the claims of popularly elected majorities. In this book the authot reveals how these battles have threatened the nation's welfare in the most crucial moments of our history, from the Civil War to the Great Depression, and may do so again. The rise of judicial power is especially troubling given the erratic and partisan appointment process. Presidents from George Washington to George W. Bush have tried to pack the bench with loyalists who reflect their views, and much as we like to believe the court remains above the political fray, the author recounts how often justices behave like politicians in robes. Now, more than eight years after Bush v. Gore, ideological justices have the tightest grip on the court in recent memory. Drawing on over two centuries of Supreme Court history, this work offers a critique of judicial supremacy, and concludes with a proposal to strip the court of its power to frustrate democratic leadership.