Obama’s Court-Packing Plan

This article is from the archive of The New York Sun before the launch of its new website in 2022. The Sun has neither altered nor updated such articles but will seek to correct any errors, mis-categorizations or other problems introduced during transfer.

The New York Sun

The prospect that President Obama is going to make his campaign not only against Governor Romney but against the Supreme Court of the United States is starting to become apparent. Daniel Henninger marked the point in his column last week, and the Associated Press came in on the story the next day with a dispatch disclosing that the president “is laying groundwork to make the majority-conservative Supreme Court a campaign issue.”

The AP noted that Mr. Obama “wasn’t completely accurate” (to put the matter delicately) when he said Monday that a decision by the Supreme Court overturning his health care law would be “unprecedented.” Mr. Obama, the wire service explained, “was making a political case, not a legal one.” The newswire reported that Mr. Obama appears ready to keep making the political case “if the high court’s five-member majority strikes down or cuts the heart out of his signature policy initiative.”

The thing to mark here is 1938. That is the year in which another Democratic president, Franklin Delano Roosevelt, tried to run against the Supreme Court. And with good reason, or so it seemed to him. The Court had delivered him a series of setbacks, starting in 1935, when it threw out the National Industrial Recovery Act that was the centerpiece of the New Deal. The Court ruled that Congress couldn’t delegate rule-making powers to the President and had overstepped the bounds of the commerce clause.

Roosevelt launched his formal attack on the court on March 9, 1937, in the first fireside chat of his second term. He talked in a way that more recent presidents have abandoned, spending more than 4,000 words in an effort to explain the scheme he was proposing. It involved adding one justice to the Supreme Court for each justice who reached the age of 70 without retiring (and expanding the rest of the federal bench in a similar way). His aim, he claimed, was to save the Constitution from the Supreme Court and the Supreme Court from itself. The court-packing plan died in the Senate.

That’s when FDR decided to take the matter to the voters in what became known as an attempted purge. The venue was the 1938 congressional election. FDR had a list of a dozen and a half or so members of congress he was aiming to defeat. He was particularly riled at Democrats who had gone against him in the court-packing scheme. These included a highly principled, if sometimes eccentric, senator from Maryland, Millard Tydings,* and another senator, the conservative Dixiecrat, Walter George of Georgia. The fight against George was particularly dramatic, given that FDR himself spent so much time in Georgia and attacked George openly in the primary race.

FDR also targeted the chairman of the Senate’s Interstate Commerce Committee, Ellison Smith of South Carolina. He was a particularly unreconstructed racist known as “Cotton Ed.” It was he who had dubbed the New Deal the “Jackass Age.” Smith’s primary opponent was the Palmetto State’s governor, Olin D. Johnston, who campaigned on the slogan: “A vote for Olin D. is a vote for the principles of Franklin D.” Cotton Ed trounced him. Time magazine called FDR’s gambit a “classic political mistake” that “got Cotton Ed re-elected just as the people of South Carolina were prepared to throw him out.”

In any event, the thing to remember about this campaign is that FDR lost every race — that is, everyone he opposed won, and those he backed lost. It wasn’t enough to change control of the House or the Senate; but it cost the Democrats six of their 75 seats in the Senate and 72 of 334 seats they held in the House.** All in all it was a historic shellacking for FDR, all the more so because he had made the court-packing scheme such a central part of the race.

This newspaper is not a fortune-teller, and we can but guess what the 1938 bi-election portends for President Obama in 2012. The court-packing scheme wasn’t the only issue in 1937. FDR’s interventionist program had helped to precipitate, come 1937, an economic slump that became known as the depression within the Depression. Mr. Obama, despite some of his recent statements, is an exceptionally smart man and can’t be ignorant of any of this history. But Americans, collectively, have an enormous wisdom, and the 1938 election suggests they understand the role of their Supreme Court.

They understand why the Court has to stand apart. They understand the principle of judicial review. And, for all the controversy about individual decisions, they understand the importance of politicians keeping their hands off of it. They know that if they really care about a national health care program, they can make in future congresses such alterations as the Supreme Court may indicate would be needed to comply with the Constitution. Our conviction is that they like their Constitution and comprehend its plain language and understand that an attack on the Court is an attack on the Constitution in which it was given.

________

*His granddaughter, Alexandra, plays Aphrodite in “Xena: Warrior Princess.”

** Total GOP gains were 88 seats in the House, owing to their defeat of a number of third party candidates.

This editorial has been corrected to remove a reference to the court-packing plan having passed the House.


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