Court-Packing 101: What Would FDR Himself Do?

What would FDR do? That’s what we’re thinking as the battle over a nomination to replace Justice Ginsburg engulfs the Senate. President Franklin Roosevelt was the last president to get so irked at the nation’s highest court that he tried to pack it with his constitutional cronies. That’s what today’s Democrats are threatening to do if the 116th Senate confirms a Trump nominee. Hence the question, what would FDR do?Before we get there, though, what, exactly did FDR do in the great court-packing caper that forever tarnished his legacy?It turns out that the number of justices is not fixed in the Constitution. What it says is that the “judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.” The first Judiciary Act, which Congress passed in 1789, set the number of Justices at six.Since then, Congress has changed the number six times. During the Civil War, the court totaled ten. That was the result of a court packing by Northern Republicans. The prospect of a 21st century expansion recalls FDR’s “court packing” scheme in the spring of 1937, when the President was frustrated by Supreme Court rulings against various New Deal measures.Agencies declared invalid included the National Recovery Administration and the Agricultural Adjustment Administration. One case cast doubt on the Tennessee Valley Authority. Many feared for the Social Security and National Labor Relations Acts. For Roosevelt, the last straw was a June 1936 decision that invalidated a New York State minimum wage law for women, a measure that had been copied by other states.On March 9, 1937, fresh from a resounding re-election, FDR told the nation “we must take action to save the Constitution from the Court and the Court from itself.” He accused Chief Justice Charles Evans Hughes and his associates of assuming a role as a third branch of the legislature. “The Court has been acting not as a judicial body,” he boomed, “but as a policy making body.”Today it’s an amazing irony that the politicians mirroring Roosevelt’s beef regarding the court are not Senators Chuck Schumer or Sheldon Whitehouse. Rather, the analogs of FDR today are the Republican conservatives and originalists, who, like FDR did, see the Supremes as improperly acting as legislators through judicial overreach.FDR’s vaunted political skills, though, failed him in his attempt to pack the court. There’s a wonderful chapter on it in Conrad Black’s magisterial biography of FDR, “Champion of Freedom.” FDR eschewed any attempt at a constitutional amendment, and offered the Judicial Branch Reorganization Plan to deal with allegedly aging justices.It requested that Congress expand the Court (and the lower courts as well) by adding one judge for every incumbent over the age of sixty-nine, up to, in the Supreme Court’s case, a limit of fifteen. The legislation was initially couched as an effort to relieve the courts of overwork and clear case backlogs, implying that aged justices were not up to the demands of their offices.Remarkably, for a man himself disabled, FDR called into question the “capacity” of “aged or infirm judges,” particularly those “unable to perceive their own infirmities.” He charged that “a lowered mental or physical vigor leads men to avoid an examination of complicated and changed conditions.”The “Reorganization Plan” created a tsunami of opposition and split the President’s own party. The scourge of Wall Street, Senator Carter Glass of Virginia, spoke for the Southern Democrats in declaring the bill “utterly destitute of moral authority” and an attempt to “replace representative government with autocracy.”On July 20, the Senate rejected that plan by a vote of 70 to 20. A bill did finally emerge from the wreckage, though — the Judicial Procedure Reform Act of 1937. It expedited appeals to the High Court and limited the capacity for court injunctions. Even as the prospects for packing the court faded, Hughes and fellow sages on the high bench took pre-emptive action.In a March 29 decision, a change in vote by Justice Owen Roberts completely reversed the Court’s stance on state minimum wage laws. It was by immortalized by humorist Cal Tinny, who quipped: “A switch in time saves nine.”Three cases in April confirmed the constitutionality of the NLRB and its parent Wagner Act. The Court was seen as sending a message of compromise, one that offered the President some semblance of victory, as his legislative prospects withered.FDR was soon to have the future of the court in his hands. With no vacancies to fill in his first term, he ended up, between 1937 and 1943, nominating eight justices, more than any president save George Washington. His nominees included not only Hugo Black of First Amendment fame but Felix Frankfurter, Robert Jackson, and liberal icon William O. Douglas. Douglas and Black would serve for thirty-six and thirty-four years respectively.How might the country react to a 2021 Biden court packing plan — one designed, not to curtail judicial activism, but expand it? Might a contemporary Carter Glass emerge to chastise fellow Democrats over such a blatant usurpation of the separation of powers? Will Chief Justice Roberts emulate Justice Hughes and attempt to engineer a more moderate tilt to the Courts, a tactic he has previously employed?Well, it is worth recalling the dictum of another eminent Roosevelt-appointed justice, and chief prosecutor at the Nuremberg trials, Robert Jackson, regarding the political standing of the Court and its legitimacy: “We are not final because we are infallible, we are infallible because we are final.”________Mr. Atkinson, a contributing editor of the Sun, covers the 20th Century.

Court-Packing 101: What Would FDR Himself Do?

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