Packing the Court: The Rise of Judicial Power and the Coming Crisis of the Supreme Court
By James MacGregor Burns
Penguin ($27.95)

Barack Obama’s nomination of Sonia Sotomayor to the US Supreme Court has refreshed the unending debate about the court’s proper role and the qualities demanded of its justices. The president thinks that judges should be guided by “empathy”. Ms Sotomayor, whose legal qualifications are impeccable, seems to have lots. But this idea offends many conservatives. They think judges should interpret the law dispassionately. They deny that skin colour or life history can make you a better judge.

Packing the Court is therefore well-timed. Burns is a prize-winning biographer (Roosevelt: Soldier of Freedom) and an authority on leadership, but not a legal scholar. This may be to his advantage. He sets out to be provocative if not reckless, and succeeds. His history of the court argues that, over the years, the justices have seized greater power than the constitution’s designers envisaged and far more than is good for the country. He wants to abolish judicial review and rein the justices back.

Reading that, you might guess Burns to be a conservative. On one view of US history, after all, the court has been instrumental in expanding the federal government. That is why many conservatives complain about “judicial activism”. But Burns is no conservative. In this book, he is a liberal on amphetamines. He sees a court that has used its power almost entirely to block liberal governments and the voters that elected them.

Over the court’s history, he argues, it “has far more often been a tool for reaction, not progress. Whether in the Gilded Age of the late 19th century or the Gilded Age at the turn of the 21st, the justices have most fiercely protected the rights and liberties of the minority of the powerful and the propertied. Americans cannot expect leadership from unelected and unaccountable politicians in robes.”

Burns’s passion for big government and disdain for the business interests that oppose it are such that he sees current justices Stephen Breyer and David Souter, regarded as liberal, only as “liberals” in inverted commas. Indeed, he folds them into the charge that the court has been “heavily packed with formidable free-marketeers”, an accusation that will surely amuse them. Nobody can accuse the author of dull orthodoxy – but how much sense does this analysis make?

Tendentious though his reading of constitutional history may be, Burns is right about some important points. Supreme Court justices are indeed unelected and unaccountable politicians in robes, as he says – and this is a problem. But they come in all ideological colours. Some are conservatives, some are liberals, some have no fixed position – but few show restraint in overruling governments and the people they represent, even when the law is unclear. Big decisions often, indeed usually of late, turn on single-vote majorities. Narrow majorities are a sign that the law is disputed. In such cases, deference to the popular will should be the norm but rarely, if ever, is.

What Burns really wants, though, is not a self-effacing court but one that puts its shoulder to the wheel of progressive politics. With surprisingly little art, he disguises this as a call for judicial modesty. He says he wants a court that would not obstruct “the kind of transforming leadership that the empowerment of the majority should make possible”. But he wants it only when the empowering majority agrees with him.

He deplores the way the court got in Franklin D. Roosevelt’s way over the New Deal – a perfect instance of judicial anti-progressivism. But the court also got in George W. Bush’s way over the issue of national security and detention of suspected terrorists. This offends Burns much less: the court rightly overturned “a claim of limitless and unaccountable presidential power”. Again it did so, in the case in question, by a single vote, and against the grain of popular opinion – but in this case the court’s political judgment was apparently correct.

This double standard creates unacknowledged difficulties for the author when he comes to suggest remedies. His modest proposal is this. Mr Obama, if the court deems a law he has signed to be unconstitutional, should simply ignore that finding on the grounds that the constitution does not give the court power to decide what the law is. The president should then invite his critics to amend the constitution, if they can, to confer that power explicitly.

It would take courage, Burns admits: “There might even be demands for impeachment.” You don’t say. But be fair. Who can doubt that if Mr Bush had attempted this, Burns would have been behind him all the way?

The writer is an FT columnist