James MacGregor Burns … An American Icon, Part I

GUEST: James MacGregor Burns
VTR: 10/18/07

I’m Richard Heffner, your host on The Open Mind.

And one reason I’m so pleased that this studio recording date has finally arrived – entirely aside from waiting too long to see once again my eternally young old friend, Pulitzer Prize and National Book Award winning historian and political scientist James MacGregor Burns – is that I know how enormously interested he is in the politics of presidential appointments, looming so very large in our own times as we consider recent and possible future changes particularly in our highest court.

Now the first time Jim Burns and I talked together on the air was more than a half century ago, when Dwight Eisenhower was running for a second term against Adlai Stevenson.

Now my guest is Woodrow Wilson Professor of Government Emeritus at Williams College, author of innumerable studies of leadership and perhaps followership in America … of which my favorite remains The Lion and The Fox, the first volume of his magnificent biography of Franklin D. Roosevelt.

Now this is our 19th Open Mind conversation, twice joined by Jack Valenti of Hollywood and LBJ White House fame, and several times by historian/journalist Max Lerner, Jim’s teacher at Williams College, my colleague at Sarah Lawrence College, good friend to us both.

Indeed, there have been few topics relating to American government and politics that Jim Burns and I haven’t parsed over the years, but none more than the adequacy – or INadequacy – of our 18th Century institution of government, particularly with all of the new challenges of the 21st Century looming.

And I want first today to ask my guest how he does relate this concern to the politics of presidential appointments, perhaps with regard mostly to the high court. Jim, what about this 18th century instrument of government today?

BURNS: Well, Dick, the funny thing about that 18th century Constitution is that it did not give the court the power to declare laws unconstitutional. That is the big thing about the Supreme Court. Unlike courts in other nations, the Supreme Court, as you know so well, can void laws passed by Congress and signed by the President.

What has particularly interested me because of this great power that the Court has … huge power to declare laws unconstitutional … naturally, who gets on the court? Well, who gets on the court is usually a friend of the President.

The problem is that it’s like, what I call Russian roulette … one President will get four or five appointments and another President … Jimmy Carter … is the shining example, gets no appointment whatsoever. It’s a real crap shoot appointing Justices. So that over time you get a very ragged court appointed by different Presidents, but not a court that reflects the politics, the views, the ideology of the American people.

HEFFNER: Should it? In your estimation?

BURNS: Yes, I think it should. I think it should … it should aspire to, to transcend ordinary politics. And to live up to my favorite document, and I think probably yours, too, the Declaration of Independence. Life, liberty and the pursuit of happiness. And it’s the fight over those great words … life, liberty and the pursuit of happiness … that has occupied the Supreme Court. And in general their interpretation of those words has been very conservative over time.

Because for some strange reason, most of the appointments have been by Conservative Presidents, in balance, and I was interested that you mentioned Dwight Eisenhower, because Eisenhower appointed Conservatives, but he thought that Earl Warren … I guess he thought he was something of a Conservative. And, of course, Warren turned out to be the great Liberal Chief Justice.

But the bottom line, Dick, is the uncertainty, the unpredictability. You’re waiting, really, for someone to die on the Court. That person may die today, tomorrow, ten years from now, or he may hang on … or she … for 20 or 30 years.

So it’s a very strange way … let me just add one other point getting back to the Constitution … the Constitution very carefully makes people responsible to somebody else. That is, the Congress is appointed by – elected by the people. The President’s elected by the people, in the way that we know … and so on.

There is no control over the Supreme Court. The Supreme Court is responsible to no one. It’s absolutely able to do whatever it wishes.

HEFFNER: Would it be fair on my part to ask you whether you think the Supreme Court should be responsible to any one or to any institution?

BURNS: I think the Supreme Court should be responsible to majority rule. So, yes, I think that ideally and we could talk more about solutions later, but ideally, the court should respond to the great movements in this country, whether Conservative or Liberal, and it does, after a while, Dick, but in the very erratic and sometimes in, ineffective way.

HEFFNER: But … who was it … Mr. Dooley who said the Constitution is what the judges, the Supreme Court says it is.

BURNS: That’s right.

HEFFNER: Would you … I, I … Jim, I wonder about this … are you saying that the Supreme Court should reflect contemporary public opinion?

BURNS: Yes.

HEFFNER: Rather than what we think it reflects, which is the law?

BURNS: Well, Dick, when it comes to making policy … I’m not talking about it’s usual judicial role of deciding cases, but when it comes to deciding policy … yes, just as the President and Congress supposedly respond to elections, I think the Supreme Court should and I’ll pick out one solution right away, that people have suggested. Which is instead of life-long tenure on the Court, that the Justices have eight year terms.

HEFFNER: What would be the, what would be the downside of that?

BURNS: the downside is that the Court, at its best is a guardian of the Constitution. The downside is that if we ever come to the point where we have a Huey Long or Hitler type even … elected President of this country, which I don’t think ever will happen, but if we did … well, of course, there again you have a problem that the President, the new President would be able to choose a new court, depending again on how many retirements the Court has had. But what’s, what’s the problem here, Dick, is that the Court can get so far behind the times, historically, and that’s what I’ve been looking at.

Particularly after the Civil War which was fought in large part for the liberation of slaves. The court took decades to adjust to what was decided in Civil War and then during the great period of industrial development and so on, the rise of capitalism, which had its very good points, but needed controls, the Supreme Court was not able to regulate capitalism the way it should have … as I see it.

So it really comes down, bottom line is “do you believe in majority rule?” A lot of people don’t. I do because I can’t think of any other way for a democracy to work than every two or four years that the people, by majority vote, elect a President and a Congress.

HEFFNER: What do you do then, in your thinking about this to the notion of checks and balances?

BURNS: Well, we already have a lot of checks and balances, even aside from the Supreme Court. We have the House checking the Senate, and the Senate checking the House. We have Congress checking the President and the President checking Congress (laugh). I don’t think we need a further check than that.

HEFFNER: You don’t want a hand … from the past, let’s say … or a hand from some other time, other than the last election playing a decisive role?

BURNS: Yes, but operating within the Constitution, under the Bill of Rights, so the hand of the past will be very much there, in terms of the overall direction of the country.

HEFFNER: Yes, but if the past really is important only in terms of really, the last election … the last expression of the popular will, of majority will. Aren’t you concerned about what our friend Tocqueville called “the tyranny of the majority?”

BURNS: No. Obviously that’s always a possibility, but if there is tyranny, if there’s tyranny by a majority, that majority, those tyrants will work their will anyway.

What I’m concerned about is the tyranny of nine, often old men appointed decades before, hanging on to their seats in the Supreme Court for ten, twenty, thirty years. To me that is a kind of … let’s call it … tyranny of the past.

HEFFNER: Well, what about the suggestion that the subject of your wonderful biographies … set before the country. I won’t use the term “packing the court” …

BURNS: (Laugh)

HEFFNER: … I didn’t like then, I don’t like it now … there’s really no reason to use it. And as you have pointed out to me, historically we have always increased the number of judges. There are the patterns of the past. Suppose we look to FDR’s notion of when a judge reached a certain age … what was it … 70 …

BURNS: Yes.

HEFFNER: … in the ’36 … was it ’36 suggestion? He had just won the election of ’36 … when did he put …

BURNS: He had just won a big majority … big majority in the election of ’36, yes.

HEFFNER: And then he went to Congress with the idea that those nine old men, would somehow or other would be forced to stop overturning the New Deal legislation that the Executive Department … his … and Congress overwhelmingly had passed. And when a man reached a certain age on the court, the President would have the power to appoint still another judge, another Justice, unless the man who had reached 70 had retired. Isn’t that a way to resolve the conflict that you suggest?

BURNS: Well, first of all, your history is very good. And that’s a very relevant point. I would have come to that at some point because that’s a perfect example of the problem I’m talking about. Roosevelt, after all, came in in 1932 in a desperate economic and social situation in this country. He passed some bills that in retrospect were not the greatest, but they were not terribly radical, but they would have helped.

The Supreme Court, as you say, struck them down … these nine old men, struck down, year after year, law after law, these laws. Then Roosevelt won a sweeping re-election in ’36, as you say. Huge majority. That’s the majority.

And he faced at that point these nine old judges. So he brought in this Bill, he didn’t handle it very well and so on. But his intent, I think, was quite proper. And that is, you cannot in the face of depression and all the ills that we’re familiar within this country, you cannot have nine old men still knocking down wages and hours legislation or the Wagner Act or whatever might be involved. That would be … you talk about tyranny … the way to bring about tyranny in this country, in my view, is when democracy does not work. And we’ve seen all around the world, democracies have failed and the tyrants come in.

Roosevelt failed, but partly because the … well, mainly because the Justices were mortal, they weren’t going to live forever … they began to either die or resign, later in ’37, so Roosevelt gets his court anyway. Now look at what happens.

He gets a New Deal Court. That seems to me quite appropriate for a man who’s been elected as leader of the New Deal. So, to get back to your basic question, it seems to me that something like the eight year term. I have an even more radical suggestion, but I don’t think I would present it to you, I think you’re enough of a historian and institutionalist …

HEFFNER: You’re going to do away with the High Court altogether, Jim?

BURNS: No. Okay, if you ask me … getting back to your first question about the Constitution. I would remedy the great failing that happened at the start and that is … the Constitution, again, did not grant power to the Supreme Court to declare legislation unconstitutional.

How did it get that power? This is, by the way, practically an unknown story. John Marshall was a very strong Chief Justice and he knew exactly what he wanted to do, which was to gain that power. And through a very tricky way, which I could spell out, but not at the moment … he worked it so that he got a law declared unconstitutional and there was nothing that the Jeffersonians and the Madisonians could do about it. It was a very adroit maneuver on his part. So he established, in short, the great precedent for judicial review.

What I would do, on my radical proposal is to say to the American people, “You were never consulted on this power of judicial review. You were consulted about the Constitution in general. The Constitution was adopted by people. You should have the right to decide, whether you believe in judicial review or not.” So I would propose that the people have the opportunity today in an election to decide whether they want judicial review.

HEFFNER: Off with Marbury and Madison’s heads.

BURNS: Well said.

HEFFNER: Jim, what do you think the American people would do, given that referendum?

BURNS: I think … and that’s a good term, by the way, the referendum. I think probably they would sustain it. Because they’re used to it. And because a lot of people would get up and say … the kind of … they would raise the kind of question you have … raised so well today. And … “Do you want the tyranny of the majority?”

But, let me just bring in, so we’re not too insular here, the British Constitution. Just in one word … you talk about majority rule … you know, you get a new majority in Britain, they can do anything they want practically. But they haven’t. It’s been safe in Britain to have a government that’s elected by the most recent majority and can do practically anything it wants to do. So I think to get back to America, that Americans would be able to handle this very well.

HEFFNER: Of course, one could say the British have one great advantage over us and that is that they are Brits … not Americans. And I’m, I’m not unserious about that.

But let’s say Marbury versus Madison will “stare decisis” … we keep Marbury versus Madison and the Supreme Court keeps its assumed power to declare laws unconstitutional. Your … you seem unwilling to embrace FDR’s plan.

BURNS: Well, I think he did it badly.

HEFFNER: Yes, he did. But we needn’t do it badly. Do we? We have a problem as you see it.

BURNS: Well, let’s project into the future a little bit. We have a Conservative court now, one big trick of Presidents, by the way is to appoint young Justices …

HEFFNER: MmmHmm.

BURNS: … who will stay there for twenty, thirty years. Eisenhower was very smart on that score, but most Presidents are. Today we have the Bush appointees, most of them … and they’re youngish, and they’re going to be with us for another 20 years or so.

And I would say to you … make a prediction right now … that given the state of the world and the crises the world and this country faces, I would bet that in the next ten or twenty years, there will be a crisis equivalent to what Roosevelt found in the 1930s.

I would like to avert that. I don’t want court plans to come either … I mean I don’t think that’s the way to handle it. But what I would like is a considered decision by the American people on this, as I said … and if that doesn’t happen, I worry about the next decade or two because of what we will face.

And we will not have the power and, as a Liberal I’ll say, the liberal internationalist policies necessary to fend off whatever the next crisis will be. And to have a static Supreme Court sitting there in their sixties and seventies and eighties … their own ages, rebutting any effort, maybe a newly elected FDR will come in … in the middle of some crisis in the next ten years. They will be sitting there presenting us with that same old situation we faced five or six times in our nation’s history, particularly with FDR, but in other cases, too, of a simply reactionary Supreme Court, responding to the politics of thirty or forty years before.

HEFFNER: Well, I listen very carefully and give much credence to what you say for many, many reasons. One major one is that the last time you were here was five days before 9/11. You were here September 6th, 2001 and you then said, “And I worry that sometime in this century, Dick, there will be a Constitutional crisis that will lead to a kind of Presidential dictatorship, such as we’ve never known.”

I mean we’ve had quasi-Presidential dictatorship, but this one … this future one, given what you consider our inability to deal with the present thanks to our … the inadequacy of our instrument of government, you called it. Because certainly we have looked at, if not faced, a number of Constitutional crises since you were here five days before 9/11. Is that the kind of thing you fear?

BURNS: Well, it’s unpredictable and you’re very kind (laugh) to remind me of, of that statement that I made. But I never would have guessed, who could have guessed what would happen on 9/11. Now that’s the thing about it, too, we’re not sure that these will be the usual crises. The next one may … I certainly hope will not be that kind of crisis … it may not be an economic crisis. It may be more of a social crisis; or an ideological crisis. Or even a psychological crisis. Something that we can hardly grasp at the moment. I’m just worried that if we have that kind of crisis and if we have a President elected who would plan to deal with it, and a Congress … that again, just to repeat that they try to put through programs and measures to deal with the crisis and they are thwarted by an unelected and in my view irresponsible, literally, irresponsible, Supreme Court.

HEFFNER: Jim I have to ask you this question. You’re the great scholar of the Roosevelt and the FDR period. And I know where my sympathies are in terms of FDR. Have we so often in this country faced the kind of problem you are concerned about. Would you say beyond Dred Scott and the invalidation of New Deal legislation after New Deal legislation, have we … in a more general way faced the dangers of an appointed Supreme Court?

BURNS: Well, all I can do is to … talk history and to talk about how, for example, the Court, for decades was unable to deal with the implication of the Civil War … again Black freedom. The Court again, on economic measures … decades of desperation on the part of wage earners in this country … part of women, and so on … failed.

And to me, Dick, it’s just a question of repeating history. That if you have an institution that is putting power into the hands of unelected men and women who will never have to face the electorate, if you do that, you’re looking for trouble.

We don’t know what the crisis might be, of course. But I don’t think they’re the ones … I don’t want them to be … I don’t want either the Bush Court or any other Court to be the ones who can thwart what the elected branches of the government will try to do.

HEFFNER: When the Warren Court thwarted what the South did and what the majority of Americans seemed to support … for 100 years after the end of the Civil War? Were you concerned then? I think not.

BURNS: Well, the Warren Court is a special case because Eisenhower, who was a good man and a middle-of-the-roader … he thought he was appointing a Conservative judge because Warren had been a very active Republican and he had been, you may recall this … he had been Dewey’s running mate when Dewey was defeated, Warren was defeated, too.

HEFFNER: Jim, I’m going to interrupt because I’m getting the sign our program is over now. But stay where you are and we’ll pick up with the Dewey-Warren race when we come back. Okay?

BURNS: Sure.

HEFFNER: Thanks to you in the audience, too, for joining me today. And, I hope you’ll join us again next time. For a transcript of today’s program, please send $4.00 in check or money order to The Open Mind, P. O. Box 7977, FDR Station, New York, New York 10150.

Meanwhile, as another old friend used to say, “Good night and good luck.”

N.B. Every effort has been made to ensure the accuracy of this transcript. It may not, however, be a verbatim copy of the program.