Packing the Court: The Rise of Judicial Power and the Coming Crisis of the Supreme Court Book

James MacGregor Burns, known primarily for his excellent two-volume biography of Franklin Roosevelt, provides a concise yet nuanced review of Supreme Court appointments, the Justices, and many cases from the beginning of the court up until the late 2000s (this was published in 2009). Burns shows how the Court went from a less-than-equal third branch of the federal government to one of the most important areas of concern for many voters (and some presidents). In the process he shows that, over time, both political parties have engaged in attempts to "pack" the court, just not all at once, with the noteworthy exception of FDR's poorly thought-out and ill-communicated court packing plan of 1937. Considering how much attention the Supreme Court and its justices have gotten in the past few years, this book seems even more timely now.

This book is more meant to be an overview rather than an in-depth treatise. Burns gives only the briefest of biographies for most of the justices, with some only being mentioned as being nominated and confirmed to the Court. Obviously some of the Chief Justices get extra treatment, as they should, most notably John Marshall, Roger Taney, William Howard Taft, Charles Evans Hughes, and Earl Warren. Burns does a good job of showing what the specific context of the times were for most of these appointments - what pressures the president who was in office at the time was facing, what he was looking for from the justice, what the make-up of the Court was at that time, and what the political landscape was like. For example, from the end of the Civil War to the beginning of the 20th century, almost all of the chosen justices were wealthy white men who had been involved in some way or another with railroads. This made for a fundamentally conservative Court that was loathe to give any rights to workers or the labor movement.

There are a few instances where Burns seems to be a bit off-base. On page 121, writing about Taft, he writes that Theodore Roosevelt had offered him an appointment to the Court but that Taft "had his eye on a bigger prize - the presidency." I have not read that anywhere else. In fact, I have read the opposite. Yes, Taft did turn down the appointment, but more so because he was being pushed into the presidency by both his wife and Roosevelt. Taft liked being a judge before he came to work for William McKinley and then TR, and wanted to be on the Supreme Court someday. But did not just want to be an Associate Justice; he wanted to be the Chief Justice. Roosevelt did not have that to offer him at the time, so Taft would have to wait many more years until Warren Harding obliged him.

When writing about Richard Nixon's challenge before the Supreme Court about whether or not to turn his tapes over to the Special Prosecutor, Burns writes that it was a unanimous decision by the Burger Court that Nixon needed to turn the tapes over. That is true, but one of Nixon's appointees, William Rehnquist, recused himself the case since he had previously worked in the Nixon Justice Department. That was the right thing for Rehnquist to do, and I think Burns should have noted it. A few instances such as these do not mar the book though. Burns is a solid historian and a good writer.

Burns ably documents the rise of the religious right, beginning in the 1960s but really coalescing in the 1980s under Ronald Reagan. This movement turned abortion into the number one issue as far as asking each potential nominee, and then the Senate asking the actual nominee, about her or his views on abortion. In the last few decades, we have frequently heard the phrase "litmus test" tossed around to describe how presidents now go about compiling a list of potential Supreme Court picks based on ideology. Yet, for most of the Court's history, this more or less did not exist. Yes, most presidents wanted to put someone on the bench who overall shared their views, but it seemed to be in a much broader context than we see today, where the candidate's background and prior decisions are parsed through, chopped up, shredded, then parsed through again.

It is clear which side of the political spectrum Burns falls on, however this is not meant as a partisan book. He is plenty critical of FDR's court-packing plan, and the Democratic Supreme Court Justices in the mid 19th century. He, I think, correctly notes the overtly partisan approach taken by the Rehnquist Court, in particular the hotly-debated Bush vs. Gore decision in 2000. I remember wondering at the time why the Supreme Court was stepping into something that was quite clearly a state issue (Florida and its incompetent handling of ballots). But then, all you need to do to get your answer is review the records of some of the Justices, and then you would know why.

In Burns' epilogue, he gives a remedy for making the Court more in line with what the Founding Fathers had originally envisioned for it. While I understand his point, and I do agree that the power of the Court has gotten so out of kilter with what it was supposed to be, his proposed solution, in the age of Trump, is somewhat terrifying. Page 253: "The President would announce flatly that he or she would not accept the Supreme Court's verdicts because the power of judicial emasculation was not - and never had been - in the Constitution." Were he to be writing this book today, I highly doubt he would still want to include those words.

Grade: B+