Tyranny of the minority: James MacGregor Burns' biased and cartoonish new history of the Supreme Court.

• Author: Root, Damon W.
• Position: Packing the Court: The Rise of Judicial Power and the Coming Crisis of the Supreme Court - Book review

Packing the Court: The Rise of Judicial Power and the Coming Crisis of the Supreme Court, by James MacGregor Burns, New York: Penguin Press, 336 pages, $27.95

THERE'S A TELLING personal anecdote in the prologue to Packing, the Court, the latest book by the Pulitzer Prize-winning political scientist James MacGregor Burns. The year is 1937, and Burns is a wide-eyed Williams College undergraduate. He is upset at the Supreme Court for thwarting the will of his beloved President Franklin D. Roosevelt. "How could these justices, most of whom had been appointed to the Supreme Court decades earlier," he writes in the voice of outraged youth, "paralyze a government twice elected by a huge majority of Americans and halt what seemed to us the march of progress?"

Fast forward seven decades, and Burns is ready with the answer. He's also eager for some payback. Burns' argument is that judicial review--the authority wielded by the courts to uphold or strike down laws--represents an illegal power grab by "unelected and unaccountable politicians in robes." As he confidently (and incorrectly) asserts, "The Framers did not include a judicial veto in the Constitution because they did not want it."

Actually, there's considerable historical evidence that the Framers both wanted and included it. The relevant constitutional provision is Article III, Section I, which vests "the judicial power" in "one supreme Court, and in such inferior Courts as Congress from time to time may ordain and establish." As the Georgetown legal scholar Randy Barnett has documented, evidence from the 1787 constitutional convention, the state ratification conventions, and other contemporaneous sources all point in the same direction: The original public meaning of the phrase "the judicial power" included "judicial nullification of unconstitutional laws." James Wilson, for example, told the Pennsylvania ratification convention in December 1788, "If a law should be made inconsistent with those powers vested by this instrument in Congress, the judges, as a consequence of their independence, and the particular powers of government being defined, will declare such law to be null and void."

Burns doesn't bother with any such evidence. Yet Thomas Jefferson, whom Burns cites as an opponent of judicial review, shared the same understanding of "the judicial power." In a 1789 letter to James Madison on the subject of including a bill of rights in the new Constitution, Jefferson wrote, "In the...