I put my review of this book on Amazon.com back in 2010, but am posting it here for more convenient access.
James MacGregor Burns' newest book, Packing the Court: The Rise of
Judicial Power and the Coming Crisis of the Supreme Court, will not
increase his reputation.
The basic premise of the book is that
the Supreme Court invented the power of judicial review out of whole
cloth back in 1803, in Marbury v. Madison, without any grounding in
the actual Constitution.
It is true that the Constitution does
not explicitly grant the courts the power to strike down laws which
violate its rules. But it does provide that "This Constitution, and the
laws of the United States which shall be made in pursuance thereof . . .
shall be the supreme law of the land . . . ." (Article VI.) Note that
it only refers to laws which have been made "in pursuance" of the
A contemporaneous analysis by Alexander Hamilton, a
member of the Constitutional Convention which drafted the present
document, can be found in The Federalist Papers, #78:
complete independence of the courts of justice is peculiarly essential
in a limited Constitution. By a limited Constitution, I understand one
which contains certain specified exceptions to the legislative
authority; such, for instance, as that it shall pass no bills of
attainder, no ex-post-facto laws, and the like. Limitations of this kind
can be preserved in practice no other way than through the medium of
the courts of justice, whose duty it must be to declare all acts
contrary to the manifest tenor of the Constitution void. Without this,
all the reservations of particular rights or privileges would amount to
The Federalist Papers were written by Madison,
Hamilton, and Jay and published under the penname "Publius" in the
newspapers of New York, attempting to convince New Yorkers to ratify
the proposed new Constitution. They are considered a very authoritative
indication of the intentions of those who drafted the Constitution.
very first Congress elected under the new Constitution proposed what
became the Bill of Rights as the first 10 amendments to the new
document. They did this to satisfy critics who opposed ratification
because the original document did not have a bill of rights. And the
very first Amendment, which set the tone for the whole set of
amendments, states that "Congress shall make no law ...." doing a
whole lot of things.
What possible purpose would have been served
by adding this language to the Constitution if the courts were required
to enforce anything enacted by Congress no matter how flagrantly it
came into conflict with the Bill of Rights?
Judicial review is so
firmly established in the clear language and intent of the Constitution
and in over two centuries of precedent that Burns is reduced to a
desperate recommendation for how to put an end to it. He wants the
President Obama to defy the Court the next time it makes a decision he
doesn't like and announce (in effect) that "John Roberts has made his
decision; now let us see him enforce it." (My wording, modeled on
President Jackson's famous fight with Chief Justice John Marshall, not
Burns'.) The president would say that he would respect judicial review
only if its supporters formally amend the Constitution to explicitly
provide for it. Of course this would take years to do.
who knows a lot more about constitutional law than Burns does, is
highly unlikely to follow this recommendation. But I am not sure that
Burns himself would care for the uses to which his own logic could be
put if we elect a right-wing president sometime.
Such a president
could, with much more grounding in the language and history of the
Constitution than Burns has, proclaim that Roe v. Wade, the original
abortion rights decision, did not have a legal leg to stand on. Our
right-winger would announce that Roe v. Wade would no longer be enforced
unless abortion advocates formally amend the Constitution to explicitly
provide for it. Again, this could not be done overnight, if at all.
needs to remember that we need to be cautious when we articulate
principles, since they have a way of coming back to haunt us.