Robert F. Jakubowicz: Burns’ prescience on Court power grab



James MacGregor Burns, who passed away this week, was a gentleman and a scholar. I use that phrase as one of the highest compliments I can pay to anyone. My wife Sylvia once asked me whether there was anyone that I could write something complimentary about. Jim Burns was one of those people. He not only was the quintessential political scientist, a highly intelligent expert in his chosen field and wise in political matters, but he was also civil, courteous easily approachable and unpretentious.

Despite his national prominence, he was as interested in local politics as he was in national politics. He ran for the congressional seat in this district. And although he did not win, he remained interested and involved in local politics from his hometown of Williamstown to the Statehouse in Boston. I have fond memories of being invited by him to a Williamstown town Democratic Committee meeting and a dinner meeting at the Williams Inn for thoughtfully and informative discussions of local and state political matters. Later when I was an adjunct lecturer for the political science department in the winter study program at Williams College, he was gracious enough to appear at several of these political lectures to share his knowledge with the students.


My last contact with him was about his 2009 book, "Packing The Court -- The Rise Of Judicial Power and The Coming Crises of The Supreme Court." Both he and I thought that the Supreme Court was acting beyond the powers the Founding Fathers intended for it. He concluded a letter he sent me about the main point of his book with this observation, "of course no one can predict what will be happening with the court some years from now, but I do truly believe that there will be another major collision, though of course not necessarily taking the course that I described in my book."

The drastic course he describes in his book is for a president to eventually declare flatly that he or she will no longer accept or follow a court’s decision striking down federal law because this power is not in the Constitution. His basic point is well taken that if the Founders intended something as radical as judicial supremacy by a non-elected judiciary over the other two branches of government then they surely would have argued about this and it would have been explicitly inserted in the Constitution.

I thought it would be appropriate to write about his views on the Supreme Court because they are timely today. There has been a recent escalation of power by the current Court to higher and higher levels of judicial supremacy over the other branches of government. The Court, in a 5-to-4 decision, took away the power from Congress to prevent discrimination in voting by ruling that a key part of the Voting Rights Act calling for pre-approval by the attorney general of local election laws, previously held as constitutional, was now unconstitutional. The Court said it, better than Congress, can decide whether there is voter discrimination in this country.

In another 5-to-4 decision, the Court, despite prior decisions to the contrary, took away congressional power to regulate campaign finances with its ruling that this is a violation of the right of a legally fictitious person -- a corporation -- to free speech. Finally in another 5-to-4 decision, the Court overruled congressional power to regulate medical insurance coverage for employees by ruling that closely owned corporations are excused on the ground of the religious freedom rights from having to comply with federal law -- the Affordable Care Act -- requiring such insurance coverage for contraceptives.

In his book, Professor Burns warned that America cannot continue to look to as few as five unelected and unaccountable justices of the Court for leadership on important national issues. He concluded that the Court, more often than not, has been indifferent to the wants and needs of a majority of Americans and this will lead to a government crisis. And that since the Constitution explicitly does not grant the Court supremacy over the other branches of government, nor did the Founding Fathers ever think of it, then steps have to be taken to curb this supremacy by the Court.


Presidents have criticized the Court from Thomas Jefferson to President Obama for its power grab. The best known proposal so far to curb
the Court’s power was FDR’s proposal to pack the Court because of its refusal to constitutionally uphold his New Deal legislation. But according to Burns, the chief justice of the Court out-maneuvered FDR by dramatically shifting the Court’s majority from striking down this legislation to upholding it. This gave rise to this comment about the Court, "the switch in time to save nine."

The insidious political effect of presidents being unable to curb the Court’s power is for them to use that power for their political purposes. Justices are now appointed to the Court by presidents who pick them on the basis that they are likely to decide national policy questions in accordance with the political views of the appointing president. George W. Bush may no longer be president, but his legacy lives on in the persona of Chief Justice John Roberts and Justice Samuel Alito.

Professor Burns’ legacy from this book is that if the Court continues on its present path there will be a crisis worse than any that have preceded it.

Robert "Frank" Jakubowicz, a Pittsfield lawyer, is a regular Eagle contributor.


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