Saturday, March 13, 2010

Thinking about the Supreme Court

Tomorrow evening our book discussion group will be considering Jeffrey Toobin's The Nine, and I have been reading James MacGregor Burns' Packing the Court for a little further background. I haven't gotten very far (128 pages) into Burns, but I can say this for him already: He makes Toobin seem like a flaming moderate!

Burns is emeritus professor of Government at Williams College, and when I was a freshman at Willamette University back in 1957 a textbook he had co-authored, Government By The People, was used in the introductory class. This book was the standard text at many schools for several decades, and a much later edition was still being used when my own textbook, Thinking About Politics: American Government in Associational Perspective, was published in 1981.

The main reason I wrote my textbook was that I considered the many existing texts very inadequate. I don't remember in what respects I found defects in Burns' text, but the title itself was horribly misleading if anyone took it literally.

Government requires organization, and as pointed out by Michels' Iron Law of Oligarchy all organizations are oligarchical: the power to make day to day decisions on behalf of the organization inevitably gravitates into the hands of a few individuals. The U.S. government is no exception to this Iron Law, and is therefore oligarchical, a characteristic it shared with the government of the Soviet Union while it was still around before 1992.

The basic difference between the U.S. and Soviet political systems was that in the Soviet Union government was by some people, who picked their own replacements when vacancies came along or (under Stalin) when members of the elite were taken out and shot. In the United States government was and is by some people, limited by the people through periodic competitive elections and the Rule of Anticipated Reactions.

In any event for better or for worse Burns is a grand old man in American political science, but I think his eventual reputation might have benefited if he had refrained from writing this latest book. Since I will not have finished it before tomorrow night's discussion of Toobin's book, I took a look at some reviews of Burns this evening, including a review in which Toobin (correctly) considered it a "polemic."

I was fascinated by the "solution" that Burns is going to propose towards the end of his book for his claimed Supreme Court usurpation of the power to declare acts of Congress unconstitutional: He would have the president announce after a Court decision he does not like that he is going to ignore it since the Constitution does not explicitly give the Court the power of judicial review. He will only obey the Court's decision if judicial review supporters amend the Constitution to explicitly give this power to the Court. Of course formal amendments take years to put through, which is hardly likely during the term of the president in question.

I am afraid that by getting into the Court so late in life, Burns has put his foot in it. There is such a long tradition of judicial review, and it is so well-grounded in logic, history, and implicitly in the Constitution, that any president who pulled this stunt would be inviting impeachment. For one thing, how does Burns account for the opening language of the Bill of Rights, which provides that "Congress shall make no law ....." doing various things? If this language were not judicially enforceable, why bother to add it to the Constitution? But there is no reason to assume that other parts of that Constitution are not equally enforceable.

Another problem for liberals with Burns' proposal is that some right wing president, election of whom we can never rule out, might use it by analogy to overturn Roe v. Wade, arguing (with more grounds than Burns offers on judicial review) that the Constitution contains no explicit right to privacy, which was the basis for the abortion rights decision, and that he will not enforce that right unless abortion supporters amend the Constitution to provide for it in no uncertain terms.

I doubt if Burns and anybody who might initially feel enthusiasm for his proposal would care to have it used for this kind of purposes!

People who propose radical changes in the rules of the game need to watch out for the danger that their proposed rules might actually be used against them. In Perplexichess (my new version of chess in which 7 chessboards are played simultaneously by teams consisting of a board person for each board plus a grand strategist plus possibly some assistants to the grand strategist) players on each of the 7 boards have the right to change one chess rule--within certain limits-- instead of moving a piece. (To add to the fun, the grand strategist for each side has the right to move pieces of his or her own color from any of the boards to the equivalent location on any of the other boards as long as it is unoccupied, and without having to take turns with the other grand strategist!)

I invented this variation to try to make chess more like law, with a hierarchy of rules (the rules of Perplexichess, the rules of chess, modifications of those rules applicable only to specific boards, etc) some of which can be changed as you go. We used this game in some of my political science classes at Adrian College, at the Pre-Law Institute for high school juniors that I ran from 1978-1984, and once at a state-level math contest for high school students. We discovered that all too often rule changes intended to advantage one side on a board were seized upon by the other side to do great damage to the game of the person who enacted them.

In any event, I doubt if Burns' prescription for what he thinks ails our courts will be taken seriously. But classes might have a grand time discussing the idea!

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