Sotomayor’s Confirmation, James MacGregor Burns’ Proposal

Historian James MacGregor Burns takes on the Supreme Court's authority in this provocative book.

Historian James MacGregor Burns takes on the Supreme Court’s authority in this provocative book.

Whether talking about her “wise Latina” remark or contending with angry white firefighters, Sonia Sotomayor and her confirmation hearings dominated press coverage this past week.

According to critics, Sotomayor’s comment signaled a tendency to decide cases on the basis of identity politics rather than judicial merit.  Republican Senator Lindsey Graham, who played a prominent role in the hearings and now says that he is leaning toward voting to confirm Sotomayor, initially articulated the concerns of many opponents when he criticized her ideology.

This type of criticism is standard fare for opposing parties: both Chief Justice John Robertsand Justice Samuel Alito are the most recent nominees by a Republican president – in this case, George W. Bush– to have faced the same kind of commentary, only from Democrats.

Still, the judge’s confirmation by the Senate appears highly likely – a decision that would make her the first Latina in the court’s more than 200-year history.

The senatorial vote is authorized in the advise and consent clause in Article III of the U.S. Constitution.

If venerable historian James MacGregor Burns had his way, the Constitution would see significant changes regarding how the Supreme Court conducts its business.

His radical proposal to have the electorate vote on the power of judicial review is just one part of a lively, stimulating and highly readable book, Packing the Court: The Rise of Judicial Activism and the Coming Crisis of the Supreme Court.

Now nearing the end of his ninety-first year, Burns opens the book by hearkening back to the day in 1937 when then-President Franklin Delano Roosevelt unveiled his original “court packing” proposal.  Frustrated with the highest court’s thwarting of key aspects of his New Deal legislation, Roosevelt proposed to add additional justices for those who stayed on the court beyond a certain age.

The proposal, which had been developed without the knowledge of other party leaders, led to a firestorm of controversy and eventually cost Roosevelt much of the political capital he had gained with his first term and resounding electoral victory over Alf Landon in 1936.

Burns, who was a sophomore at Williams College when Roosevelt made his announcement, maintains that such going against the people’s will was hardly a unique or unprecedented occurrence.  Packing the Court traces the history of the court from its inception at the end of the 18th century and finds multiple such instances as well as a long pattern of presidents attempting to nominates justices who they believe will support their views.

The demonstration of a long history of attempted court packing is interesting enough by itself, but is hardly the most engaging feature of Burns’ work.

In a relatively brief survey, Burns reviews the history of many of the court’s key decisions and finds it often has countered moves toward social progress.

Among the more memorable are the Dred Scott decision, which is considered by many to be the nadir of all the court’s verdicts; Plessy v. Ferguson, which gave official sanction to the ‘separate but equal’ doctrine that underpinned American apartheid; a series of railroad cases in the late 19th century that enhanced corporate power and diminished workers’ rights;  and Hirabayashi v. U.S., which held that curfews against a group of people were acceptable when the country was at war with the country from which that group originated.

This is to say nothing of Bush v. Gore, which Burns makes clear he considers a completely baseless decision, or Lincoln’s suspension of habeas corpus during the Civil War.

Burns’ point is that the immunity from accountability after the confirmation hearings, combined with judges’ lifetime tenure, has meant that a small bunch of individuals has ended up taking actions with momentous consequences, even when those decisions are dramatically at odds with the people’s desires.  He notes that this tendency has only increased since 1970, when judges’ tenures have increased from an average of 17 to 26 years.

Part of the value of Burns’ argument is that he does not hew simply to conservative or liberal lines.

While one senses he approves of the substance of many of the decisions issued during the Warren Court, he notes fairly that the trampling of federal, state and local statutes is another example of the same deplorable behavior of judicial activism.

In short, he maintains that justices have moved beyond interpreting rules to creating them.

The source of these creative tendencies is the concept of judicial review-an idea and legal practice developed by John Marshall, whose decisions over three decades greatly enhanced the judicial branch and federal government’s power.

Burns’ book gives us entertaining nuggets on the personalities of many of the nation’s most famous justices, from the cantankerous Felix Frankfurter to the worldly Louis Brandeis.  While painting a respectful picture of Marshall, he does take square aim at the concept of judicial review that he developed and advanced without popular consent.

His final section includes a proposal to restrain the court’s power.  Burns suggests that the president should ignore the court’s verdicts unless the people pass a constitutional amendment officially authorizing the justices to strike down unconstitutional laws.

Burns acknowledges that such an action would occasion strong reaction, up to and including impeachment.  Still, he maintains that such a risk is worth taking to deal squarely with what he sees as the unwarranted expansion of the court’s authority far beyond what the framers initially intended.

It’s a provocative notion, and one that at the very least merits discussion, if not concerted action.

Some reviewers have criticized Burns for an inconsistent reading of the court’s decisions.  I saw that part of the book as more of an explanation of the intersection between individual justices, their temperament at the time and the questions they had to decide.

After reading Packing the Court, I called Mr. Bradford Wright, my high school U.S. History teacher and himself a nonagenarian.  Sharp as ever, he listened to my description of the work, then said, in essence,

“I haven’t seen that book yet.  It sounds like I should read it.”

You should, too.

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