Packing the Court
James MacGregor Burns, in his latest book Packing the Court (2009, Penguin Press), suggests that the Court strayed from its initial bearings early on when Chief Justice Marshall carved out an institutional duty to strike down state and national laws that violate the Constitution. He is right that the Supreme Court, from its inception, was the most inferior of the three branches. Article III of the Constitution, which created the Court, is notable only for its brevity and delegation of authority for establishing the federal courts and their jurisdiction to Congress. Judicial review is altogether missing, and the bane of Burns' existence for the duration of this work.
Burns' problem with judicial review is that it is fundamentally undemocratic. Supreme Court justices are unelected and appointed to lifetime terms. They have no regular accountability to the people outside of the court of public opinion. Their tenures most often outlive the presidents who nominated them and the Senators who voted to confirm them. Throughout our history, it is quite common for a majority on the Court to nix the achievements of a President and Congress with agendas on the ideologically opposite poles.
The author's argument breaks down on account of the fact that the Court was undemocratic by design. The Constitution at heart is a fundamentally conservative document. Through separated and shared powers, and strategically positioned checks and balances, the democratic will is sometimes stymied, and the pace of inevitable change glacial.
Moreover, it's hard to argue that the Supreme Court doesn't have a duty to strike down laws that conflict with the government's foundational document. If these nine men and women are not so empowered, who will wield this necessary sword? Here lies the fatal flaw in Burns' book. He fails to offer an alternative vision for the daily doings of the Court. If not judicial review, then what? Certainly, he would allow for justices to determine the meaning of the Constitution, but then turn around and neuter them when an act of Congress or presidential excutive order violates its basic tenets?
At play here is the proverbial elephant in the room. The Supreme Court is held high as an institution where political party and ideology are checked at the door and the brethren in their majestic robes search for the original meaning of the Constitution, or its contemporary relevance, through textual interpretation and the evolution of common law. The reality is that the vast majority of justices share the same political party and/ or ideology as the president who appointed them, and employ these beliefs in their daily doings. Justices' terms on the bench are increasingly lengthy, making it likely that they will serve under presidents and Congresses with divergent views, and during changing political climates.
Such a scenario is currently unfolding. Six of the nine contemporary justices were appointed by Republican presidents. One, John Paul Stevens, has since drifted to the left ideologically and become the leader of the liberal wing of the Court (Ginsberg, Breyer, and most likely Sotomayor), but the remaining five represent a fairly reliable conservative majority (Roberts, Scalia, Kennedy, Thomas, and Alito). Obama is arguably the most liberal president since Lyndon Johnson, and Congress is controlled by his Democratic Party. In the short term, conflict appears inevitable.
It is widely speculated that Justice Stevens is on the cusp of retirement, presenting Obama with his second Supreme Court appointment, but this would do little to change the ideological complexion of the body. The same is true of Justice Ginsberg. However, should Obama win reelection, conservative Justices Scalia and/ or Kennedy may also leave the bench, providing Obama with an opening to consolidate a left-of-center majority more supportive of his agenda.
Elections have consequences, and the current Court is a product of them. Burns would be wise to heed their results and respect the marvels of separation of powers and checks and balances embedded in our founding document.