Is the Supreme Court Unconstitutional?

As Sotomayor faces confirmation, Pulitzer Prize-winning historian James MacGregor Burns’ Packing the Court lambastes the bench for being too political and unaccountable to the public.

We have another Supreme Court confirmation hearing on our hands, and this means the same partisan wrangling as always: accusations of judicial activism, thinly veiled litmus tests, various rhetorical shiners, and an abundance of baseball metaphors (from “umpires” to “home runs”). And then, of course, there is the event all senators, advocates, and legal expositors turn out for—the age-old debate about the Constitution. As Thomas Jefferson once remarked, the Constitution becomes a “mere thing of wax” under the judiciary’s heavy hand. If this is true—and, according to the latest book on the Supreme Court, it may be—the real constitutional threat comes from the bench; it always has.

“There is no place in modern democracy for unelected judges to veto 21st-century legislation.”

So says Pulitzer Prize-winning historian James MacGregor Burns in his timely new book, Packing the Court. His is a detail-laden polemic about the perils of judicial power, which he sees as fundamentally antidemocratic because the justices are insulated from public accountability at the ballot box. It is an old, familiar argument that deserves a fresh look with the nomination of Sonia Sotomayor.

Commentators have pronounced the Sotomayor confirmation battle all but over. Republicans lack the numbers to derail her nomination in the Senate, and her record alone is more that of a restrained technocrat than an irrepressible radical. Aside from her rulings in individual cases while on the appellate bench—always fair game in the vetting process—her critics have leveled one major charge against her. And it is central to Burn’s encompassing account of the politicization of the Supreme Court. Simply, she is a judicial activist who will “legislate from the bench.” Any nominee would have been up against as much.

Accusations of judicial activism are at least as old at the court itself. Packing the Court chronicles the controversy over the court’s legitimacy that has dogged the judiciary since the Framers sparred over its place among the other branches. In the early years of the republic, the power of the Supreme Court fueled disputes between Federalists and Republicans. Presidents have lambasted the Supreme Court, from Thomas Jefferson to Andrew Jackson, Theodore and Franklin Roosevelt, and Ronald Reagan. Sometimes the gripes have been personal (antagonism between chief justice and president), other times political (a slighted policy, ideological disagreement), and almost always tactical.

Packing the Court. By James MacGregor Burns. 304 pages. Penguin Press. $27.95. Knocking the institution on populist grounds—that the court, as the onetime presidential candidate James Weaver once fumed, “dethroned the people… and enthroned the oligarchy”—is something of a rhetorical touchstone in American history. It has been the linchpin of presidential campaigns and a low-maintenance (and thus popular) way to burnish congressional credentials. Politicians are necessarily territorial about their authority. And the judiciary, charged with policing institutional and legal boundaries, is the natural culprit in alleged usurpations of power.

Reading Packing the Court drains the Sotomayor confirmation hearings of some of their drama. So far, experts have put to rest the most popular criticisms of her nomination anyway. A recent study by NYU's Brennan Center found her unmistakably moderate in her jurisprudence, voting with the majority on the Second Circuit Court of Appeals in 98 percent of constitutional cases. Still, the accusation of activism persists because it has too much cachet, too much historical valence to fade from view. “Judicial activist” is just shorthand for ideological disagreement.