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

Burns is a meticulous historian who packs (pardon the pun) a wealth of historical narrative in a mere 261 pages of Packing the Court. As I read this book, it had been ten years since I took the required Constitutional Law course in the law school curriculum. So, this book was a wonderful stroll down memory lane, as it gave me the opportunity to succinctly retrace the Constitutional history of the United States from Marbury v. Madison to the present. This book has a narrative flow that reminds me of Howard Zinn's A People's History of the United States. Every student of American history knows all about FDR's efforts to pack the Court, but Burns reveals other Presidents' efforts to pack the Court of their time with Justices who share the appointing President's political ideology (to gain some control over what Burns calls "judicial roulette"). Burns writes in a non-partisan and purely academic (though not dull academic) tone. It isn't until the epilogue, wherein Burns claims that Marbury v. Madison was wrongly decided and the power of judicial review is unconstitutional, that Burns reveals his extreme leftist leanings. Notwithstanding the epilogue, I highly recommend this book to any lawyer, historian, politician or civic-minded individual.

James MacGregor Burns' history of the judicial system is brilliant. The writing indicates why he is considered one of America's premier historians. From the very opening of the book to its final page, the reader is drawn into the world of the third branch of the federal government. Burns' clarity of purpose and his observations of history as it pertains to the federal government is brilliantly presented to the reader. His writing is such that one needs not be a legal scholar to understand and appreciate the machinations o the role of politics even in this supposedly non political branch of our government. The book is a tour de force. Brilliant

James MacGregor Burns, the 89- year old distinguished historian and Pulitizer winner, noted for his biographical works on Franklin D. Roosevelt and John F. Kennedy, esteemed by many for his work on presidential power and leadership, has written Packing the Court, a learned, brisk attack against the Supreme Court's power to declare acts of Congress unconstitutional. At a time of international and domestic crises, Burns urgently maps a roadway down which President Obama or some future president could drive Congress and the nation into unprecedented political disorder. Indeed, Burns seems to savor the turbulence of our time as a transformational period in which President Obama would prove his great capacity for leadership. Burns' unique plan foresees the president, as it were, suiting up as a kamikaze pilot who waits until the Supreme Court declares a popular act of Congress unconstitutional. At that point, the President will refuse to be bound by the judgment on the ground that, notwithstanding the more than 200-year old Marbury v. Madison, 5 U.S. (Cranch 1) 137 (1803), the Court was not empowered to declare an act of Congress unconstitutional, and this for two reasons. First, the Constitution, no matter how it is held up to the light, does not provide for that judicial power and the proceedings before its ratification do not disclose that the Framers intended or even debated the grant of that power to the Court. Second, and Burns' most telling point, reasonable men would not place decisions of profound moral and political issues, involving liberty and property, in the hands of nine unelected persons, politically selected, essentially unknown to the nation at large, appointed for life, accountable to no one, and removeable only by impeachment. Burns' argument is unanswerable. Surely, one cannot say that because more than 200 years have passed since Marbury we are bound to live with its essentially undemocratic character another 200 years. In any case, Burns argues that if his argument has merit, a Constitutional amendment would remedy the problem. In the national uproar that would be triggered by the President's action, the President, as envisioned by Burns, would invite partisans of Marbury to propose an amendment to the Constitution providing for that power. The people through Congress and their state legislatures would then have the power to establish the Court's power of judicial supremacy or to reject it. As for the President, Burns states helpfully that "He would need only to sit tight", executing "the laws the Supreme Court had unconstitutionally vetoed". Burns' claim is not a scholarly stunt. It is a broadsword swipe at our claim of a democracy. Lincoln in his Inauguration address in 1861 pointed directly to it when in the face of an agitated Chief Justice Taney, Lincoln declared: "I do not forget the position assumed by some, that constitutional questions are to be decided

This is a completely engrossing history of the Supreme Court and its politicization over the course of American history. Justices are often "politicians in robes" who are unaccountable to voters, Burns argues, and they have often clashed with the other elected branches of government. But the Framers of the Constitution never intended for the judicial branch of government to be "supreme" -- and they never gave the high Court the authority to "veto" acts of Congress, as it did when it invalidated the Missouri Compromise and precipitated the Civil War -- and as it did again during FDR's administration, and as it is likely to do again in the future. This is a provocative, stimulating book, full of interesting and witty stories and anecdotes about the Court's remarkable Justices, such as William Howard Taft. "Packing the Court" is one of the best and most stimulating books I've read in years. Burns lives up to his reputation as one of the nation's foremost historians and political scientists.

I learned a tremendous amount about the Supreme Court and its dramatic and colorful history from this book. It's very readable, written with verve and lots of humor. Burns highlights the problems that a Court of unelected, lifetime appointees can present when it opposes the democratically-elected branches of Congress. His arguments are fresh and controversial, and always interesting and challenging. I felt that I was taking a most enjoyable course in history and American politics. A first-rate read! Highly recommended to all.