- The Washington Times - Tuesday, July 21, 2009

In the 1970s, it was Clement Haynsworth; in the 1980s, it was Robert Bork; and in the 1990s, it was Clarence Thomas. Now it is Judge Sonia Sotomayor. Since the 16-year era of the liberal, activist Warren court that handed down myriad unprecedented decisions on race, criminal justice, privacy and church-state relations, conservatives have strived mightily to appoint “strict constructionists” and block “permissive” judges. Liberals, at the same time, have determined to do just the opposite, contending that the Constitution is a “living document.”

Before the Warren court, judicial nominations caused few political problems and generally were greeted with indifference by the voters. President Truman’s four appointments (Harold H. Burton, Fred M. Vinson, Thomas C. Clark and Sherman Minton) caused hardly a stir. Nor did President Eisenhower’s five (Earl Warren, John Marshall Harlan, William J. Brennan Jr., Charles Whitaker and Potter Stewart). Yet some of them went on to change the course of history. Mr. Eisenhower, in fact, publicly stated that he regretted the appointments of Justices Warren and Brennan. Subsequently, judicial nominations became major election issues and often have torn the country apart.

Pulitzer Prize-winning historian James MacGregor Burns, who after a long career at Williams College is now a Distinguished Leadership Scholar at the University of Maryland, has come up with a solution to these seemingly endless and divisive political battles. Mr. Burns points out that Article III of the Constitution, which created the Supreme Court, says nothing about the high court’s right to declare acts of Congress unconstitutional. Moreover, the records of the debates at the Constitutional Convention offer no indication that judicial review of acts of Congress was what the delegates had in mind. In fact, it was never even discussed.

The power of judicial review was simply seized by Chief Justice John Marshall in the court’s landmark 1803 decision in Marbury vs. Madison. President Jefferson and his Republican allies were outraged by the action of Federalist Marshall but felt powerless to counter it. In Marshall’s 34-year tenure, the high court rendered other acts of Congress unconstitutional, and this power became widely accepted by the American body politic.

But this national consensus began to become unglued during the New Deal. When the elderly, conservative justices threw out New Deal legislation, which had passed by overwhelming congressional majorities, as “unconstitutional,” the nation was outraged. However, President Roosevelt’s ham-handed effort to rein in the court met with a similar outcry. He proposed that he be allowed to appoint one new justice for each one older than 70 who refused to retire.

Under the Roosevelt proposal, the court could grow to a maximum of 15 judges. The contretemps eventually was resolved by the retirements of elderly justices and the president’s appointment of new ones. The burning issue of the power of the Supreme Court then lay dormant until the controversies over the Warren court.

Mr. Burns says that allowing the Supreme Court to retain its power to declare acts of Congress unconstitutional is an affront to American democracy. “John Marshall was wrong,” he contends. “It is emphatically the province and duty of the American people, not of the nine justices, to say what the Constitution is.” Adding to the undermining of democracy, according to Mr. Burns, is the long tenure of the justices: 15 years since the beginning of the Republic and 26 years since 1970, because presidents are appointing younger justices who are living longer.

As a true beacon of democracy, Mr. Burns cites the British system, which has reflected the will of the people for centuries without judicial review. Whatever measures Parliament enacts become law. If the voters don’t like it, they can throw the government out in the next election. But Mr. Burns’ suggested transfer of the British system to the United States would not ease the rancor over the Supreme Court.

The author proposes that when the Supreme Court declares unconstitutional a popular act of Congress that is supported by the president, the chief executive should declare that there is no place in the Constitution that gives the court that right. He should then invite “the partisans of judicial supremacy” to give the court that right through a constitutional amendment. Meanwhile, the president should enforce the statute the high court rejected. The practical problems with Mr. Burns’ plan are manifold.

In the first place, the Congress that passed the rejected legislation is highly unlikely to muster the two-thirds majority necessary to send a constitutional amendment to the states, where three-fourths of the legislatures are required to pass it. And even if the following Congress were to do so, the president could face an incendiary political backlash for refusing to comply with the court’s decision. Witness the popular reaction- even among Democrats — to Roosevelt’s much milder proposal to rein in the court. This could create an atmosphere of extreme partisanship across the nation until the constitutional issues were resolved, which could take years.

But suppose, unlikely as that might be, that despite the high hurdles, the amendment passed. It would only involve acts of Congress and would do nothing to resolve the partisan furor that has whirred around the court since the 1960s. After all, the most divisive issues, such as abortion, same-sex marriage, racial quotas and church-state separation, have little to do with acts of Congress. They basically stem from lower court decisions and acts of the states.

In all fairness, the bulk of this book is a fascinating exploration of the Supreme Court since Marshall’s time. It focuses on such influential personalities as Roger Taney, Charles Evans Hughes, Louis Brandeis, William Howard Taft (the only person to be both president and chief justice) and the politics behind their appointments. In most cases, the politics of the appointment were far more important than the qualifications of the nominee.

In contrast, all of the current justices have sat on the appeals courts — but that is not because presidents value the experience. It gives them the opportunity to assess nominees’ lower court decisions to determine if they would reflect the chief executive’s views if named to the Supreme Court.

The 91-year-old Burns is one of the nation’s most distinguished historians, particularly in his studies of Roosevelt and the New Deal. Nevertheless, his solution to the problem of an unelected Supreme Court throwing out acts of Congress is a reach - to say the least.

• Gerald R. Rosen is a longtime Washington journalist specializing in politics and economics.

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