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Friday, June 29, 2018

President Seeks Control of the Supreme Court: The "Court-Packing" Plan

Perhaps better known as FDR's "Court-Packing" Plan:
After winning the 1936 presidential election in a landslide, Franklin D. Roosevelt proposed a bill to expand the membership of the Supreme Court. The law would have
added one justice to the Court for each justice over the age of 70, with a maximum of six additional justices. Roosevelt’s motive was clear – to shape the ideological balance of the Court so that it would cease striking down his New Deal legislation. As a result, the plan
was widely and vehemently criticized. The law was never enacted by Congress, and Roosevelt lost a great deal of political support for having proposed it. Shortly after the president made the plan public, however, the Court upheld several government regulations of the type it had formerly found unconstitutional. In National Labor Relations Board v. Jones & Laughlin Steel Corporation, for example, the Court upheld the right of the federal government to regulate labor-management relations pursuant to the National Labor Relations Act of 1935. Many have attributed this and similar decisions to a politically motivated change of heart on the part of Justice Owen Roberts, often referred to as “the switch in time that saved nine.” Some legal scholars have rejected this narrative, however, asserting that Roberts' 1937 decisions were not motivated by Roosevelt's proposal and can instead be reconciled with his prior jurisprudence.
Some of you might recall that Mr. Roosevelt was not a Republican.

More at  FDR's Losing Battle To Pack The Supreme Court,
"Some suggested that Congress ought to be able to overrule the Supreme Court," he explains. "By a two-thirds vote, Congress should be able to overturn any ruling of the Supreme Court, essentially making Congress the last word on the Constitution and not the Supreme Court."

"He didn't think it was practical," says Shesol. "It takes a very long time, usually, to amend the Constitution ... enough to change the reality in the country. But secondly, and this is really important in understanding why Roosevelt packed the court, [is that] he didn't see any kind of contradiction between the Constitution and the New Deal. He didn't think there was anything in the Constitution that prevented him from doing what he needed to do. The problem as he saw it was not the Constitution; it was the conservatives on that particular Supreme Court. So what could you possibly do about them? So that's how he came to the idea of packing it."
"Age does not define ideology," he says. "Even though Roosevelt looked at what he called the 'nine old men of the Supreme Court' and suggested that the older justices were falling out of touch with reality, the oldest justice on that court in the 1930s was [Louis] Brandeis, the great liberal justice. And this was pointed out with glee with many of Roosevelt's opponents. ... So, you don't hear anything like that today. You hear concern on the part of progressives in this country that Justice Stevens and the other liberals are more likely to leave the court soon than any of the conservatives are, but I think we've come a long way since the 1930s, when that argument was made so forcefully by Franklin Roosevelt."
When the "progressive agenda" has been thwarted by the Supreme Court, some folks have suggested that court-packing might be a swell idea. Recently, for example, one Todd N. Tucker writes In Defense of Court-Packing with the delightful sub-title of "We shouldn't let a handful of reactionary judges get in the way of progressive change. It's time to pack the Supreme Court." -
With Tuesday’s Supreme Court ruling upholding Trump’s Muslim ban, Wednesday’s decision attacking public sector unions, and Justice Anthony Kennedy’s announcement that he’s retiring, it is time to push a once-marginal idea to the top of the agenda: pack the Supreme Court. The conservative majority’s support of Trumpism and opposition to progressive objectives means it will pose a barrier to the agenda of even the most left-leaning president and Congress. This barrier must be confronted head on.
From the time the justices unilaterally asserted their power to strike down legislation in 1802, a democracy-eroding judicial supremacy has been an ever-present danger. One of the most significant confrontations came in 1937, when the Franklin D. Roosevelt administration decided to pick a fight with the Court.
That’s not to say court-packing is easy. Historians have documented how FDR badly managed public and congressional opinion, and would have had difficulty actually getting a favorable vote on his bill. His ultimate triumph came from being able to wait out the Court by serving more than two terms — something not available to politicians today, despite having relatively young conservative justices like Neil Gorsuch that will be around for decades to come.

Nonetheless, this shouldn’t dissuade us. Political scientist David Faris makes a compelling case that court-packing — along with statehood for D.C. and Puerto Rico and other reforms — amounts to a prerequisite for lasting progressive change. In his new book, It’s Time to Fight Dirty, Faris proposes to expand the roster of the Court to eleven or thirteen immediately, and then pass a law allowing presidents to appoint a new justice every two years. Meanwhile, the most senior justices would be shuffled into a type of emeritus position with lesser responsibilities. The nine most junior cases would do most of the judging, with more senior justices momentarily pulled into duty in the case of a justice’s death.
A thoughtful court-packing proposal would ensure that the Court more carefully reflects the mores of the time, rather than shackling democracy to the weight of the past. With inequality and human rights abuses spiraling upward and justices making it all worse, the time to begin mainstreaming an enlarged Court is now.
I wonder if Mr. Tucker has considered that a conservative president might accept his argument for court-packing but in a manner Mr. Tucker would most definitely not approve? Wouldn't this scheme just lead to an endless shuffling of justices by succeeding administrations that differ in political viewpoints?

And, hey, what about the fact that the "most senior justices" might be the ones "progressives" would like to keep (Justices Stevens and Ginsberg, e.g.), while this idea would allow Mr. Trump to keep rolling in "conservatives." Indeed, that was one of flaws of Mr. Roosevelt's original court-packing plan - his successors could invoke the same concept to achieve their agendas - which may have differed greatly or completely reversed his.

Further, I wonder how Mr. Tucker views the Supreme Court decisions which he might like - say on abortion - are they examples of "democracy-eroding judicial supremacy?"

But, of course, the general rule in cards and politics is "winners always crack jokes, and losers say "deal." or, as Willie Nelson, that great legal scholar put it:
The winners tell jokes and the losers say deal
Lady Luck rides a stallion tonight
And she smiles at the winners and she laughs at the losers
And the losers say now that just ain't right
So, first, Mr. Tucker and Mr. Faris, you need to win . . . which didn't happen.

UPDATE: Idiocy runs amok with an opinion piece in the NYT on court packing Stacking the Court. Really, do these folks think that somehow the other side won't do exactly what they are suggesting except by loading the court with conservative justices?

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