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Overstating Judicial Power, Good And Bad

[ 1 ] July 8, 2009 |

I haven’t received my copy of Packing the Court yet, so it may be more nuanced on some points that its initial reviews make it sound. Assuming that the general take of Bazelon and Kakutani is correct, however, it seems to mix one salutary and one bad argument together. On the on hand, it’s always good for scholars to point out to a general audience that the progressive orientation of the Warren Court has generally been the exception, not the rule. On the other hand, Burns seems to cling to conventional myths about judicial power in other respects, both overstating the power of the courts and not paying enough attention to the extent to which the judiciary is more likely to be a collaborator with the national government than an antagonist.

According to Kakutani, Burns plays the ultimate card in attacking an overreaching court: “Dred Scott, a clear victory for the slave-holding states, would fuel tensions between the North and South and push the country down the path toward civil war.” As I (and others) have said before, this argument makes little sense, both because the Supreme Court’s role in the path to Civil War was trivial at best and because the Court was acting with the strong support of both congressional leaders and the president. Perhaps Burns has a plausible historical story explaining why the Court ducking the case would have kept the country together, but I am (to put it mildly) skeptical. The key to the election of Lincoln was the collapse of the Democratic coalition, and there’s no chance that the Democrats could have survived Buchanan’s blundering over Lecompton no matter what the Supreme Court did.

As it happens, right now I’m reading Scot Powe’s excellent new book, which gives a detailed account of judicial collaboration with other political elites throughout history. He argues (after emphasizing that the Court was in cahoots with the political elites of the time) that had Dred Scott came out correctly (with Dred Scott freed and Congressional power to ban slavery in the territories affirmed), this likely would have led to immediate Southern secession — and with impunity, since Buchanan was clearly opposed to using military force to combat secession. This isn’t certain, I suppose, but it is true that I can’t see any scenario in which a normatively good ruling in Dred Scott wouldn’t have made the underlying political situation as bad or worse.

None of which is to say that I have a problem with vilifying Taney and his immoral (and, in places, erroneous) opinion. But from the standpoint of assessing judicial power and American institutions, it’s critical to keep in mind that the Slave Power’s control over the political branches was more important than their control over the Supreme Court by a factor of about a billion — and, moreover, the latter follows from the former.