To begin with my customary update, the President's health care speech--which I thoroughly enjoyed--seems to have had a mildly negative effect in the traffic in the scurrilous email comparing him to Hitler, fraudulently attributed to me (that's right), which as undoubtedly brought many of you hear this morning. In the build-up to the speech hits continued to rise, reaching an all-time record of 1384 on Tuesday, but since the speech they have fallen by over a third, failing to top 1000 yesterday, and promising to fall much lower today. In addition, after about half a dozen phone calls from fans over Labor Day weekend, I have had only one, I believe, in the last few days. The speech, I thought, was excellent, and the President has to find ways to give more like it. He also has to make clear that health care reform is only the first of a series of huge challenges that we have to face. This article in today's New York Times, for example, makes it very clear that the successful bail-out of Wall Street has simply encouraged all its players to go back to business as usual, more confident than ever that the federal government will rescue them the next time things go wrong. An earlier article even unveiled the hot new Wall Street product, securities based upon life insurance policies which desperate consumers have had to sell back at a discount. Pushing several reforms at once, moreover, would make it harder for Republicans to focus upon the imagined defects of any particular one, and would ram the point home to the general public that the Republicans will simply oppose anything the President wants. In a crisis era, the common belief that Presidents have just one year to put through one big initiative does not, and cannot, hold.
Instead, however, I want to turn to a new book covering the whole sweep of American history, one of the more remarkable that I have read recently--Packing the Court, by the political scientist James MacGregor Burns, whom I got to know during my year at Williams College. Because Burns has an encyclopedic knowledge of American history and because he has, as I mentioned last week, remained faithful to some of the beliefs of his youth in the 1930s, the book's 259 pages come from a unique perspective and make a unique contribution. It must certainly be one of the half-dozen best books ever written by anyone in their tenth decade and is therefore quite an inspiration to yours truly. And although its conclusion will be a hard one for younger liberals to accept, they should certainly do some thinking about it.
Anyone of liberal sympathies born between about 1935 and 1955 grew up grateful for the Supreme Court and its works. Such people first became aware of the Court while Earl Warren was its chief, and watched it strike down school segregation, eliminate significant parts of the anti-Communist legislation from the McCarthy period, order the redistricting of state legislatures, outlaw prayer in schools, vastly expand the rights of defendants, eliminate (for a time) capital punishment, legalize birth control and then abortion, expand freedom of the press, and (under Warren's successor) deliver a key ruling that led to Richard Nixon's resignation from office. Warren, Hugo Black, William O. Douglas, William Brennan, Arthur Goldberg and Thurgood Marshall were liberal heroes, and with good reason, and many of us wondered where the country would be without the Supreme Court's exercise of its powers to enforce the Constitution and strike down state and federal laws.
Burns' book strikes at this view--which he apparently never held--from two directions. First, at the theoretical level, he argues that the Framers never intended to allow the Court to strike down, at any rate, federal legislation. (I do not think he takes a clear position regarding state legislation, although he frequently criticizes individual court decisions that overturned state laws as well.) I was not entirely persuaded by his summary of the evidence of what the Founders intended that they shared his views. A most scrupulous scholar, Burns does not in fact claim that they rejected judicial supremacy, but simply notes that they rejected explicit proposals for routine judicial review of pending legislation (an option even today in several states), and argues that judicial review contradicted their basic philosophy. The key point of the book, made by the title, is that once John Marshall had asserted that power (ironically without actually exercising it) in Marbury vs. Madison, Presidents preferred to use the appointive power (a much more powerful tool in an age of shorter lifespans than our own) to shape the court according to their own views, than to challenge its powers head on either by defying it or proposing a Constitutional amendment to limit them. (Until 1869, moreover, they sometimes made strategic changes in the size of the court; not until then did Congress fix the number of justices at 9.) That he clearly regrets, since it has not only turned the Court into the single most powerful branch of government (since there is no immediate way to countermand its decisions), but also put selections to it at the center of our political life.
Burns's second point, however, is the most troubling one--especially now. The Warren Court's role was the exception in American history, not the rule. For most of our history--and especially from the end of the Civil War until FDR's court packing plan--the court has been a reactionary influence in American life, zealously defending the rights of the powerful against the weak. It played a key role in the 1870s and 1880s in dismantling the protections of new black citizens that Reconstruction had put in place. During the same era it gave corporations nearly absolute liberty against state and local governments by defining them as "persons" under the 14th Amendment whose property--that is, profits--could not be taken away by legislative restrictions that did not, in the court's view, represent "due process of law." When the Progressive era began to restrict that power, the court in the first three decades of the twentieth century repeatedly struck down state legislation regulating wages and hours and attempting to protect the public in other ways. From 1922 to 1928, the court, led by the enormously influential Chief Justice William Howard Taft (who in one way or another had managed to choose over half its members), invalidated an average of eighteen federal, state or municipal laws a year.
This process reached a climax, of course, from 1934 to 1936, when the Court, which still included five members born before the end of the Civil War, struck down a number of major pieces of New Deal legislation, including the NRA, the AAA, and a law to prevent farm foreclosures. Every piece of New Deal legislation seemed to be in jeopardy. Roosevelt at one point in 1934 had planned to defy the Court, when it threatened to overrule his decision to take the dollar of gold and effectively reduce its value by about a third, but the Court, which as we shall see seems to have a sixth sense about exactly how far to push its powers, had surprisingly allowed that to go ahead. After his enormous re-election victory in 1936, when he carried 46 out of 48 states, he decided on new legislation to allow him to appoint six new justices--one for every justice who had not retired at the age of 70--rather than propose a Constitutional amendment specifically limiting its powers. He prepared the step poorly, giving Congressional leaders no chance to weigh in, and suffered a devastating defeat from which his domestic prestige never recovered.
That, however, as Burns pointed out, was only part of the story. On March 29, 1937, just weeks after FDR had sent the court packing plan to Congress, the court, led by Chief Justice Hughes, gave in to the New Deal on two crucial decisions, upholding exactly the kind of state wages and hours law that it had thrown out a year earlier, refusing to annul a new law on farm bankruptcies which Congress had passed in response to their rejection of an earlier one, and upholding a new law on railway labor. Two weeks later the Court stunned the country by refusing to strike down the Wagner Act, then as now the federal law that guarantees unions the right to organize. After that came the resignation of the aged Willis Van Devanter, whom FDR replaced with southern liberal (but one-time KKK member) Hugo Black, my own personal court favorite, and then, in subsequent years, a slew of deaths and resignations which eventually enabled Roosevelt to replace nearly the entire court and lay the foundation for the Warren Court decision of the 1950s and 1960s and some equally controversial ones during the next decade.
Those decisions, however, had long-term consequences that are only now reaching their climax. Like their counterparts earlier in American history, conservatives, while decrying judicial supremacy initially, chose rather in the long run to turn it to their advantage by appointing justices who would reflect their views and reverse Warren and Burger Court decisions. Although Richard Nixon's attempts to put a majority in place that would halt the momentum of school desegregation failed, Roe v. Wade became the chief target of the conservative movement after 1973 and Republican Presidents, relying increasingly on Evangelical religious groups for their support, became increasingly dedicated to the cause of appointing justices that would overturn it. (To be sure, three justices--Sandra Day O'Connor, Anthony Kennedy, and David Souter--disappointed conservative Republicans on this point, but Kennedy has now apparently shifted his ground.) Recognizing the power of the Courts, the Republicans have created the Federalist Society to propagate conservative judicial ideas. Conservative justices have in addition invalidated local school board desegregation plans, given state governments immunity against suits under federal law (in direct violation of the supremacy clause), and most famously, awarded the Presidency to George W. Bush in 2000, clearly usurping powers delegated in the first instance to the state of Florida and thence to the Congress. The court now has four dedicated, unified conservatives--Thomas, Scalia, Roberts and Alito--three of them Baby Boomers who could easily serve twenty more years apiece, and one swing vote, Anthony Kennedy, who has joined them in the most recent abortion and gun control cases (the latter the subject of a lengthy commentary here.) How they will deal with legislation passed by Democratic-controlled political branches remains to be seen, but Burns obviously fears the worst.
The remedy he proposes is simple: Presidential defiance of a Supreme Court decision to strike down federal legislation, in order in effect to make that power, never explicitly mentioned in the Constitution, null and void. Perhaps, once again, because of the 30-year difference in our ages, I have mixed feelings about such a step. The whole history of the nation shows, I think, that we do need the Court as a bulwark against usurpations of the Bill of Rights, although most (but not all) of those have come from the executive rather than the legislative branch. (The Court, I am suggesting, should be free to rule both on the administration of justice, so as to protect the rights of defendants, and on the kind of assertions of unilateral executive power, not backed by statute, of which the Nixon, Reagan and Bush II Administrations were so fond.) But although Burns does not mention this, the supremacy clause, which declares the Constitution and "all laws and treaties made under it" to be "the supreme law of the land" can be read to support his position, since it puts a federal law on an equal footing with the Constitution itself and thus could be said to leave to the legislative and executive branches, acting together, the right to decide what the Constitution requires or allows. In general, one could say, the whole effect of the various overlapping jurisdictions in the US--not only within the federal government, but involving states and localities as well--has been to introduce more randomness into our political outcomes than European states, where power tends to be more centralized, generally experience. The United Kingdom has always allowed Parliament to reverse High Court decisions by passing a new act, for example. We cannot foresee the consequences of any particular institutional change, but Burns, in addition to providing a very entertaining history of our most arbitrary institution and its works, has alerted us to a long-term danger that will need to be met again.