The 21st Century Case For Packing The Supreme Court

FDR did nothing wrong. Well, that isn’t exactly true ― from his internment of Japanese Americans during World War II to his neglecting of civil rights in order to appease congressional Democrats in the South, there are plenty of blots on the record of the man though to be one of our greatest presidents. But what is decidedly not one of them was his “court-packing” scheme, an attempt in 1937 to expand the number of sitting justices.

Among many historians, this move is regarded as one of the great mistakes of his presidency, an overreach of executive power for partisan political purposes that backfired on Roosevelt in spectacular fashion. However, a closer look at history shows that not only did this move actually pay off politically for Roosevelt and help save the New Deal, but it offers a blueprint for how a future progressive President and Congress should deal with a Supreme Court that will be dominated by conservative Justices for decades to come if we fail to act.

To understand the real lessons the American left and center-left today should take from FDR’s court packing, we must first understand what prompted FDR to try and pack the court in the first place. Throughout his first term, FDR and his allies in Congress passed sweeping laws that transformed American society for generations, the New Deal. However, what many forget is that the New Deal was extremely contentious in those early years. FDR’s reforms faced powerful opposition at every turn, from members of Congress, to business leaders, to the media. The Supreme Court, far from being “above politics,” was just as much a part of this political opposition as any of them. At this time, the Court was dominated by a group of conservative Justices known as the “Four Horsemen,” who passionately opposed the New Deal on ideological grounds, believing that it was a dangerous gateway drug that would eventually lead to communism. Throughout Roosevelt’s first term, they frustrated him time and time again by declaring many New Deal laws unconstitutional. The laws they struck down ranged from the Agricultural Adjustment Act, which provided government subsides to struggling farmers, to the Railroad Act, which created pensions for retired railway workers and established greater regulation of the railroad industry. Many Americans shared Roosevelt’s frustration, denouncing the Horsemen as “economic dictators” whose interpretation of the law invariably sided with big business interests over the people and their elected representatives. At protests across the country, the justices were hanged in effigy. Something had to give.

In the elections of 1936, Roosevelt won a sweeping mandate from the American people to continue the New Deal, winning sixty-one percent of the popular vote and every state except Maine and Vermont. As his second term began, Roosevelt was determined to break the power of the Horsemen. In order to do so, his supporters in Congress introduced the Judicial Reform Act of 1937. The bill stated that the President could appoint a new justice to the Supreme Court for every sitting justice that was over seventy years old, up to a maximum of six new justices. Seeing as every one of the Four Horsemen was older than seventy, the bill would have wiped out their power over the Court in one blow if it had passed. Roosevelt and his supporters believed the law was on their side (the Constitution does not set limits on the number of Supreme Court justices), and more importantly that the American people were with them. Unfortunately for the New Dealers, this was not to be. Conservative Democrats betrayed Roosevelt to oppose the Act, including his own Vice President John Nance Garner. Despite this, the bill might yet have passed had it not been for the untimely death from a heart attack of Roosevelt’s most powerful ally in Congress, Senate Majority Leader Joseph T. Robinson. The Judicial Reform Act would die, but although Roosevelt had lost the battle, what those who proclaim court packing a failure have forgotten is that Roosevelt would still win the war for the Court.

The very introduction of the Act put great pressure on the court’s conservatives, and ultimately they would cave. In the case of West Coast Hotel Co. vs. Parrish, the Court would rule on whether or not the state of Washington’s new minimum wage law was constitutional. Owen J. Roberts was the so-called “swing justice” on the court that usually gave the Horsemen their critical fifth vote, much the way supposedly “moderate” Justice Anthony Kennedy does today. He was expected to vote with the Four Horsemen to strike down the law, but in the court’s ruling on March 29, 1937, he defied expectations and voted in favor of the minimum wage, just as the court-packing bill was being introduced. Three months later, Justice Willis Van De Vanter, one of the Four Horsemen, announced his retirement. This would enable Roosevelt to appoint the staunch liberal Hugo Black in his place. By 1941, the remaining Horsemen had either retired in their turn or died, and in their places Roosevelt would appoint justices friendly to the New Deal.

What lessons can liberals and leftists take away from Roosevelt’s court-packing adventure? Let’s say that our best hopes are realized in the upcoming elections of 2018 and 2020, and we win back the White House and large majorities in both houses of Congress. We will still have the Supreme Court to contend with. Donald Trump has already gotten away with appointing Neil Gorsuch, a right-wing wolf in the clothing of an “aw-shucks” sheep who puts on a smile for the cameras even as his judicial record indicates that he is deeply hostile to the rights of women, minorities of all stripes, and working people. Washington is currently buzzing with rumors that Justice Kennedy will retire, allowing Trump to appoint someone as bad as Gorsuch or even worse. Who knows how long liberal icon Ruth Bader Ginsburg’s health will hold up? Should Trump fill even one of those seats before Democrats take back the White House, let alone both, the highest court in America will be dominated by the right wing beyond what the Horsemen could have ever imagined.

Whoever the next Democratic President is, be it Kamala Harris, Elizabeth Warren, Bernie Sanders or whoever else, they will likely have to contend with the most reactionary Supreme Court in over a hundred years. How will they respond if said Court overturns Roe v. Wade? How about if a progressive President and Congress manage to pass Medicare for All, only to see it struck down, which the Supreme Court nearly did to the Affordable Care Act? If any of us have any illusions left that the Supreme Court is above politics, we need to get rid of them now. Every right-wing friendly decision the Supreme Court of our time has rendered, from Citizens United to the decision in Shelby County vs. Holder that gutted the Voting Rights Act, is an act of politics. No argument in court will change their minds or move them in any way. Only through an opposing act of politics can they be defeated. It is unacceptable for us to wait around for decades for Justices like Gorsuch, Alito and Thomas to retire or die while they render verdict after verdict that devastates our people and shreds our democratic institutions. If progressives regain power through elections in this country, then we have no choice but to use that power to stop the Supreme Court from undermining our democracy, just as Franklin D. Roosevelt did.

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