Tag Archives: James MacGregor Burns

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.


Stephanie Behne on another FDR biography

Stephanie Behne shares her thoughts about a new FDR biography.

Stephanie Behne shares her thoughts about a new FDR biography.

Chicago Reporter intern, dedicated mother and wife, and emerging career changer Stephanie Behne posted the following in response to a recent post about President Obama and a biography about Franklin Delano Roosevelt by James MacGregor Burns  (Again, the added links are mine):

“I, too, am a little envious of your ability to feast on books. But I’m chomping on a good one now, the Brands biography of FDR you mentioned, Traitor to His Class. I’m just a little over halfway through, but there’s so much in the 430 something pages I read so far, I should mention a couple things while I still remember them!

Brands’ book is reminiscent of Burns, it sounds like, in showing FDR’s true talent as the consummate politician. Congenial, even charming, he not only won the average person over personally but had the ability to reach out and create a sense of understanding with his radio audience, too. A fine use of the technology of the times, really, to further his own political aims. But people responded to him in person, too, so is that so wrong? Politics and technology–sound like anybody we know today?

Another strategy that FDR used that stuck with me was when he’d put rivals together to work out issues, while he mostly stayed out of the way. One example was workers and union reps during the establishment of the NRA and the “planned economy.” Amazingly, it worked over and over with different people and agreements reached to fulfill a variety of political goals.

I could go on and on. FDR and his battle with his polio diagnosis was compelling in Brands’ hands. Roosevelt’s extraordinary handling of the crisis and establishing a sort of a rehab spa for polio victims from across America in Warm Springs, GA–at his expense, he brought them there and encouraged and exercised right alongside of them–was a surprisingly inspiring section. For a period of several years, he recuperated, strengthened, and entertained wonderfully, even fishing, boating and driving a hand-controlled car around the countryside on his own and with groups of friends regularly. In letters, he reported feeling better than he ever had in his life!

Brands goes on to say of FDR: “…for years afterward he credited his experience in Georgia with providing insight into this aspect or that of politics, economics, or the American dream.”

Also, too, there are many striking similarities to our new 44th president, aside from the shrewd use of technology, that it would take at least another comment space to mention them.”

Terrific post, Stephanie! I look forward to borrowing the Brands book after you finish it!

Everyone else, keep the comments coming!


Obama’s Inauguration, FDR’s Lessons


Today is Obama's inauguration; he could learn from a book about FDR by James MacGregor Burns.

Today is Obama's inauguration; he could learn from a book about FDR by James MacGregor Burns.

In a few short hours, Barack Hussein Obama, Jr. will be sworn in as our 44th president.

The success of his campaign, the significance of his election and the manner he has handled his transition all have been the subject of intense scrutiny and endless analysis.

Now, his moment is here.

In the assembling of his cabinet and during the four-day buildup to his inauguration, Obama has paid explicit tribute to Abraham Lincoln, another lawyer from Illinois elected to the land’s highest political office during enormously trying times.

Obama has visited the Lincoln Memorial with his family and has emulated Lincoln in pulling together what author Doris Kearns Goodwin called ‘A Team of Rivals’ to advise him.

He also might do well to consider the example of another president with whom he share personal  and political similarities and who also entered the presidency under daunting, if not overwhelming, circumstances: Franklin Delano Roosevelt.

Both men were lawyers educated at Harvard and Columbia universities with genial personalities.  Both were married to tall, formidable women who were occasionally pilloried for speaking her mind. 

Both ran against older Republican candidates honored for their previous national service.  Both men were criticized for thin prior records of elected positions and for running on optimistic and excessively vague messages of change. 

Both men won, and proceeded to assemble cabinets full of Ivy League talent.

Seventy-six years ago today, Roosevelt stood before a nation in the grips of the Great Depression and told Americans famously that they had nothing to ‘fear but fear itself.’

The speech began a flurry of activity during the first 100 days of Roosevelt’s tenure; the collection of government-sponsored programs  that emerged became known as the New Deal.

Always a staple of biographers, Roosevelt is the subject of two recent books that I have not yet read: The Defining Moment: FDR’s Hundred Days and the Triumph of Hope, by Newsweek senior editor Jonathan Alter and A Traitor to His Class: The Privileged Life and Radical Presidency of Franklin Delano Roosevelt, by historian H.W. Brands.

Obama would also do well to consider Williams College emeritus proessor James Macgregor Burns’  Roosevelt: The Lion and the Fox.

The first political biography of Roosevelt-it was published in 1956-The Lion and the Fox takes its title from a quote by fabled Renaissance political adviser Niccolo Macchiavelli

The message is clear: in order to accomplish the work of government, a prince must act at different times like a lion or a fox.

Burns skillfully takes the reader through the arc of Roosevelt’s career, from his childhood, from which he emerged with his trademark jaunty confidence, through his battle with polio, which fortified his spirit, through his unprecedented and never to be matched four elections to the presidency (In part influenced by Roosevelt’s repeat elections, our elected leaders passed in 1951 the 22nd Amendment that limits a president to two elected terms after assuming office.).

The book is at its best when showing how smoothly Roosevelt moved between constituencies, communicating weekly with the public in his fireside chats, cajoling and encouraging at times, blithely ignoring opponents at others and continually displaying uncanny instincts of the public’s mood. 

Burns also demonstrates how Roosevelt was a master of listening amiably, seeming to agree with the other person who was talking with in reality committing himself to no concrete action.  This flexiblity and opportunism could prove infuriating to opponents, and, according to Burns, proved to be an advantage in mobilizing during a crisis.

The Lion and the Fox is not a work of hagiography, though.  

Burns spends extensive time in the book talking about how Roosevelt, after winning a landslide victory in 1936 that confirmed the Democrats’ political dominance for decades, overreached the following year. 

In an act that can fairly be called political hubris, he channeled the frustration he felt at an oppositional Supreme Court into what became known as the ‘court packing’ plan.   

The proposal consisted of the president’s ability to appoint additional judges to the court when sitting judges reached the age of 70 1/2 years.  If passed, the court could have grown from its generally standard size of nine judges to as many as 15.

The reaction was swift and strongly negative. 

Roosevelt squandered much of his valuable political capital in a draining and ultimately unsuccessful fight that culminated in his defeat.  

Without the onset of World War II, which began when Adolf Hitler’s army stormed through Poland on September 1, 1939, it is not apparent whether Roosevelt would have won a third term.

Of course, both the German blitzkrieg and the Japanese attack on Pearl Harbor both happened, and Americans chose Roosevelt to lead them through arguably one of the most difficult times in its history. 

A grateful nation was on the verge of victory when Roosevelt collapsed and died in April 1945, almost exactly 80 years after Lincoln was assassinated.

Burns ends the book with Roosevelt’s death and brief reflections on the study of political leadership.  Richly detailed and balanced in its assessment of one of America’s towering figures, The Liox and the Fox is both engaging and informative. 

Obama supporters looking for comfort as their man tackles a massive set of obstacles-an economy in shambles, two wars and a warming planet are only three of the biggest-should take heed from Burns’ work.

Despite Roosevelt’s repeated efforts at stimulating the economy through the First and Second New Deals, America only truly emerged from the Great Depression after it entered the war during his third term.

Obama, at most, will have two.

The nation and the world awaits his speech and subsequent actions.