On one view of US history… 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…
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.
Burns suggests a constitutional crisis.
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.”
Yes, just possibly. A bizarre recommendation, and a tendentious telling of the history, as I say. But still I found the book worth reading. It’s provocative and well-written, and gets a lot right.