What to Do About the Court?

Packing the Court: The Rise of Judicial Power and the Coming Crisis of the Supreme Court by James MacGregor Burns, Penguin Press, 326 pages, $27.95

Something is rotten in the United States today, and it's the activist Supreme Court. The rantings of Rush Limbaugh? No, this accusation comes from a proud liberal, James MacGregor Burns, a Pulitzer Prize-winning political scientist who is the author of classic works on leadership and American government. In this colorful polemic, Burns marches energetically through the history of the Supreme Court, arguing that the Court has used its authority on the side of the privileged, the propertied, and the powerful and against the interests of ordinary citizens. Invoking original intention like a born-again Robert Bork, he thunders that the framers never wanted the Supreme Court to be able to declare statutes or executive actions unconstitutional.

Although the book is styled as an attack on judicial review, Burns often approves of it when justices such as Earl Warren reach results he likes. And he often criticizes the Court for exercising judicial restraint when he thinks the result unjust. But Burns' larger point is that although courts sometimes promote progressive values, they usually don't, so the disadvantages of judicial review outweigh its occasional advantages.

Throughout the book Burns tends to conflate judicial review with judicial supremacy. Judicial review is the power of courts to hold statutes and executive actions unconstitutional; judicial supremacy is the idea that the Supreme Court has final say on the meaning of the Constitution. The United States has judicial review but not judicial supremacy. In Burns' defense, the Supreme Court in recent years has tended to encourage this confusion, but in practice the Court has neither the first nor the last word on the Constitution's meaning.

The great irony of Burns' book is that history shows that the Supreme Court continually responds to larger political trends, revising its earlier views over time to conform to the values of changing national majorities. The Supreme Court isn't counter-majoritarian. As the political scientist Robert Dahl pointed out in 1957, the Supreme Court's policy views "are never for long out of line with the policy views dominant among the lawmaking majorities of the United States."

Courts respond to the policy views of national majorities for two reasons. First, successful political mobilizations win elections and influence court appointments. The Supreme Court has a conservative majority today because conservatives dominated national politics for many years. Second, successful social movements change political common sense and professional norms of what is plausible and reasonable. Federal judges, as elite members of a learned profession, are strongly influenced by these changes, and the moderate or "swing" justices who decide most contested cases are especially sensitive to them. That is why a conservative court has protected gay rights and law-school affirmative action and even stood up to a conservative president, rejecting his detention policies in the "war on terror."

The title of Burns' book comes from an episode in the 1930s, when President Franklin Delano Roosevelt sought to pack the Supreme Court with six additional justices to secure a liberal majority after the Court's conservatives had repeatedly struck down New Deal legislation. Roosevelt's gambit failed, ate up much of his political capital, and almost derailed his presidency.

Burns, the author of a two-volume biography of Roosevelt and an admirer of the president, worries that in one respect the past will repeat itself. Today, as in the 1930s, the Court has five conservatives, and he suspects they won't like what progressives have in store. Roosevelt eventually replaced the Nine Old Men with New Dealers. But Supreme Court justices stay on the bench forever these days. So perhaps Barack Obama will face a permanent phalanx of conservatives, who, like the Supreme Court of old, will use judicial review to block progressive reforms.

Burns' solution? "Confronted by a hostile court repeatedly striking down vital progressive legislation, a president could declare that there is no place in a modern democracy for unelected judges to veto twenty-first century laws. The president would announce flatly that he or she would not accept the Supreme Court's verdicts because the power of judicial emasculation of legislation was not -- and never had been -- in the Constitution." Instead, Burns argues, the president should dare defenders of "judicial supremacy" to pass an Article V amendment specifically granting the courts the power to strike down laws.

What Burns suggests no president in his right mind would attempt, and for good reason. Presidents need the courts to establish the legitimacy of their actions and maintain their positive programs. Suppose the Roberts Court declares campaign-finance laws unconstitutional. How, precisely, does Burns believe the president would refuse to accept this decision? The Federal Election Commission cannot issue orders unless the courts will back them up; the Justice Department cannot prosecute people for violating campaign-finance laws if the courts hold that the underlying criminal statute is unconstitutional. Without courts, campaign-finance law is a paper tiger, as are most other regulatory interventions of the modern administrative state.

Or suppose that the Roberts Court holds (which, by the way, it will not) that President Obama's health-care reforms go beyond congressional powers under the General Welfare Clause and the Commerce Clause. How, precisely, is the president to induce compliance with health-care regulations against recalcitrant state governors if he cannot use the federal courts? How can federal agencies control health-care costs if insurance companies can refuse to abide by federal mandates because the judiciary won't enforce them?

Non-cooperation works both ways. The regulatory and administrative state that Burns admires works only because courts have legitimated it. The flip side of the power to strike down laws is the power to give them political legitimacy. That is why progressives like Roosevelt were less interested in disobeying courts than in getting courts to work with the political branches to establish the constitutionality of New Deal programs and to enforce new regulations against outliers in the states and in private enterprise. What Roosevelt sought was not a world without judicial review but lots of new judicial appointments. Eventually he got nine of them.

Similarly, Lyndon Johnson had no interest in attacking the Supreme Court in the 1960s because the federal courts legitimated the civil-rights revolution. Attacks on judicial review came from opponents of civil rights such as George Wallace and Richard Nixon. Burns focuses on review of national laws, but the power of judicial review is most important in a federal republic in bringing states and localities into line with the values of the national political coalition. During the civil-rights era, the federal courts enforced the Bill of Rights and equality guarantees against local officials, particularly in the Deep South. To be sure, the Court enforces national values against localities whether the national political coalition is conservative or progressive. But that is not an argument against the nationalizing function of judicial review. It is an argument for electing more progressive politicians to Congress and the White House.

The story of the New Deal demonstrates why Burns' fears are overstated. The 1930s court was a holdover from a conservative Republicanism that had dominated politics for over a decade but by 1932 had been soundly defeated at the polls. Although Roosevelt got no appointments in his first term, public agitation for change eventually affected the Courts' swing justices (Charles Evans Hughes and Owen Roberts), and the Court upheld the second wave of New Deal legislation. By that point justices began to retire and Roosevelt stocked the Court with devoted New Dealers. Presidents rarely challenge the Supreme Court unless holdovers from a discredited regime get in the way, and presidents usually cease as soon as they appoint new justices of their own.

Burns correctly points out that justices now stay on for years so that presidents have fewer chances to add jurists who support their aims. The greater longevity of justices, however, hasn't changed the Court's tendency to track national political opinion. Even if it did, the solution is more regular appointments to the Supreme Court. Along with many other scholars on the left and the right, I've argued that presidents should get one appointment every two years and that the nine members of the Court most junior in years of service should form the quorum for deciding cases. More senior justices would pinch hit in case of recusals, help pick cases to hear on appeal, and sit on the lower federal courts. These reforms preserve life tenure and would not require a constitutional amendment. They are a far better way to ensure the Court's democratic responsiveness than asking presidents to flout judicial decisions.