Fanning the Flames: The Freedom Project Blog


Packing the Court

By Shawn Healy
The U.S. Supreme Court prematurely kicked off its 2009-2010 term with a special hearing last week of a rescheduled challenge to the McCain-Feingold campaign finance reform law. They focused specifically on a ban of corporate-sponsored communication, in this case "Hillary: The Movie," considering whether it violates the First Amendment's freedom of speech. The ruling is likely weeks or even months away, but a 5-4 majority appears poised to further peel back this 2002 landmark legislation and unravel past Supreme Court precedents upholding the law and the larger concepts of corporate bans. This trend is not unique to our time, but is the product of judicial review, a power the Supreme Court assumed for itself in the 1803 case Marbury v. Madison.

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.


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Managing Director

McCormick Freedom Project

Shawn is responsible for overseeing and managing the operations associated with the McCormick Freedom Project. Additionally, he serves as the in house content expert and voice of museum through public speaking and original scholarship. Before joining the Freedom Project, he taught American Government, Economics, American History, and Chicago History at Community High School in West Chicago, IL and Sheboygan North High School in Wisconsin.

Shawn is a doctoral candidate within the Political Science Department at the University of Illinois at Chicago where he received his MA in Political Science. He is a 2001 James Madison Fellow from the State of Wisconsin and holds a bachelor's degree in Political Science, History, and Secondary Education from the University of Wisconsin at Madison.

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About Fanning the Flames and the McCormick Freedom Project

Fanning the Flames is a blog of the McCormick Freedom Project, which was started in 2006 by museum managing director Shawn Healy. The blog highlights the news of the day, in hopes of engaging readers in dialogue about freedom issues. Any views or opinions expressed on this blog represent those of the writers alone and do not represent an official opinion of the McCormick Freedom Project.

Founded in 2005, the McCormick Freedom Project is part of the McCormick Foundation. The Freedom Project’s mission is to enable informed and engaged participation in our democracy by demonstrating the relevance of the First Amendment and the role it plays in the ongoing struggle to define and defend freedom. The museum offers programs and resources for teachers, students, and the general public.

First Amendment journalism initiative

The Freedom Project recently launched a new reporting initiative with professional journalists Tim McNulty and Jamie Loo. The goal is to expand and promote the benefits of lifelong civic engagement among citizens of all ages, through original reporting, commentary and news aggregation on First Amendment and freedom issues. Please visit the McCormick Freedom Project's news Web site, The Post-Exchange at