Packing The Court

From renowned political theorist James MacGregor Burns, an incisive critique of the overreaching power of an ideological Supreme Court For decades, Pulitzer Prize-winner James MacGregor Burns has been one of the great masters of the study of power and leadership in America. In Packing the Court, he turns his eye to the U.S. Supreme Court, an institution that he believes has become more powerful, and more partisan, than the founding fathers ever intended. In a compelling and provocative narrative, Burns reveals how the Supreme Court has served as a reactionary force in American politics at critical moments throughout the nation's history, and concludes with a bold proposal to rein in the court's power.

This important book is a detailed reinterpretation of one of the most explosive events in modern American politics - Franklin Roosevelt's controversial attempt in 1937 to "pack" the Supreme Court by adding justices who supported his New Deal policies. McKenna traces in unprecedented detail theorigins of FDR's plan, its secret history, and the President's final failure. Drawing on a remarkable range of sources McKenna provides the definitive account of a turning point in American political and legal history.

"A stunning work of history."—Doris Kearns Goodwin, author of No Ordinary Time and Team of Rivals Beginning in 1935, the Supreme Court's conservative majority left much of FDR's agenda in ruins. The pillars of the New Deal fell in short succession. It was not just the New Deal but democracy itself that stood on trial. In February 1937, Roosevelt struck back with an audacious plan to expand the Court to fifteen justices—and to "pack" the new seats with liberals who shared his belief in a "living" Constitution.

"Challenges the argument that court-packing will politicize the Court and undermine its institutional legitimacy, arguing that the "law-politics dichotomy" is a myth because politics always has and always will influence Supreme Court decision-making"--

Originalism holds that the U.S. Constitution should be interpreted according to its meaning at the time it was enacted. In their innovative defense of originalism, John McGinnis and Michael Rappaport maintain that the text of the Constitution should be adhered to by the Supreme Court because it was enacted by supermajorities--both its original enactment under Article VII and subsequent Amendments under Article V. A text approved by supermajorities has special value in a democracy because it has unusually wide support and thus tends to maximize the welfare of the greatest number. The authors recognize and respond to many possible objections. Does originalism perpetuate the dead hand of the past? How can originalism be justified, given the exclusion of African Americans and women from the Constitution and many of its subsequent Amendments? What is originalism's place in interpretation, after two hundred years of non-originalist precedent? A fascinating counterfactual they pose is this: had the Supreme Court not interpreted the Constitution so freely, perhaps the nation would have resorted to the Article V amendment process more often and with greater effect. Their book will be an important contribution to the literature on originalism, now the most prominent theory of constitutional interpretation.

Rethinking the New Deal Court: The Structure of a Constitutional Revolution challenges the prevailing account of the Supreme Court of the New Deal era, which holds that in the spring of 1937 the Court suddenly abandoned jurisprudential positions it had staked out in such areas as substantive due process and commerce clause doctrine. In this view, the impetus for such a dramatic reversal was provided by external political pressures manifested in FDR's landslide victory in the 1936 election, and by the subsequent Court-packing crisis. Author Barry Cushman, by contrast, discounts the role that political pressure played in securing this "constitutional revolution." Instead, he reorients study of the New Deal Court by focusing attention on the internal dynamics of doctrinal development and the role of New Dealers in seizing opportunities presented by doctrinal change. Recasting this central story in American constitutional development as a chapter in the history of ideas rather than simply an episode in the history of politics, Cushman offers a thoroughly researched and carefully argued study that recharacterizes the mechanics by which laissez-faire constitutionalism unraveled and finally collapsed during FDR's reign. Identifying previously unseen connections between various lines of doctrine, Cushman charts the manner in which Nebbia v. New York's abandonment of the distinction between public and private enterprise hastened the demise of the doctrinal structure in which that distinction had played a central role.

A riveting story about change in the Obama era--and an essential handbook forvoters who want the truth about the president, his record, and his enemies by"TIME" senior correspondent Grunwald.

The fascinating, behind-the-scenes story of Franklin Roosevelt's attempt to pack the Supreme Court has special resonance today as we debate the limits of presidential authority. The Supreme Court has generated many dramatic stories, none more so than the one that began on February 5, 1937. Franklin Delano Roosevelt, confident in his recent landslide reelection and frustrated by a Court that had overturned much of his New Deal legislation, stunned Congress and the American people with his announced intention to add six new justices. Even though the now-famous "court packing" scheme divided his own party, almost everyone assumed FDR would get his way and reverse the Court's conservative stance and long-standing laissez-faire support of corporate America, so persuasive and powerful had he become. I n the end, however, a Supreme Court justice, Owen Roberts, who cast off precedent in the interests of principle, and a Democratic senator from Montana, Burton K. Wheeler, led an effort that turned an apparently unstoppable proposal into a humiliating rejection—and preserved the Constitution. FDR v. Constitution is the colorful story behind 168 days that riveted—and reshaped—the nation. Burt Solomon skillfully recounts the major New Deal initiatives of FDR's first term and the rulings that overturned them, chronicling as well the politics and personalities on the Supreme Court—from the brilliant octogenarian Louis Brandeis, to the politically minded chief justice, Charles Evans Hughes, to the mercurial Roberts, whose "switch in time saved nine." T he ebb and flow of one of the momentous set pieces in American history placed the inner workings of the nation's capital on full view as the three branches of our government squared off. Ironically for FDR, the Court that emerged from this struggle shifted on its own to a liberal attitude, where it would largely remain for another seven decades. Placing the greatest miscalculation of FDR's career in context past and present, Solomon offers a reminder of the perennial temptation toward an imperial presidency that the founders had always feared.