(This article first appeared in the American Spectator Magazine: https://spectator.org/supreme-court-packing/)
By: John C. Wohlstetter, Senior Fellow
President Joe Biden’s tirade against a Supreme Court decision that didn’t go his way elevates the future of the Court to a new level of intensity and, hence, political priority.
Let’s begin with the president’s July 1 tweet reacting to the Court’s Arizona election law ruling:
Today’s decision by the Supreme Court undercuts voting rights in this country — and makes it all the more crucial to pass the For the People Act and the John Lewis Voting Rights Act to restore and expand voting rights protection.
On its face, the tweet simply criticizes the Court’s decision. But in the context of calls from senior Democrats to pack the Court unless it mends its ways, it translates into calling for rulings that conform to Democratic Party goals.
The Democrats aim to add justices to shift the Court’s balance leftward to erase the current conservative majority. Consider Sen. Chuck Schumer’s blatant 2020 threat warning the Supreme Court justices ahead of a decision on a Louisiana abortion case which tested Roe v. Wade.
I wanna tell you Gorsuch, I wanna tell you Kavanaugh, you have released the whirlwind and will pay the price, you won’t know what hit you if you go forward with these awful decisions.
Then there are two inappropriate intrusions by President Barack Obama: his 2010 attack on the Court’s free-speech ruling in the Citizens United case during his State of the Union address and his 2012 veiled warning to the Court in advance of its decision on Obamacare to not engage in “judicial activism.”
To her (rare) credit, House Speaker Nancy Pelosi has stopped the House from considering court-packing legislation. But Sen. Sheldon Whitehouse, who sits on the Judiciary Committee — and who, one hopes, never is elected to the Oval Office — bragged that his 2020 attack on Amy Coney Barrett during her confirmation hearing might have saved Obamacare, which was upheld in June. The none-too-subtle senator crowed, “If we hadn’t done that, maybe they would have” killed the law. “It may be [saved],” he added, “because we did so many warnings.”
Round One: FDR’s 1937 Court-Packing Debacle
The predicate for examining the 2021 court-packing debate is to review its infamous 1937 historical antecedent. The late Chief Justice William Rehnquist devoted an entire chapter in his 1987 book The Supreme Court: How It Was, How It Is to Franklin Roosevelt’s failed 1937 attempt to pack the bench.
Rehnquist set the stage for the first and so far only attempt to pack the Court by noting that in the 72 years from 1861 to 1933 — 18 presidential terms — Republicans controlled the White House for 56 years, excepting only Andrew Johnson (1865–69) Grover Cleveland (1885–89 and 1893–97), and Woodrow Wilson (1913–21). FDR then served continuously from 1933 until his death in 1945, just shy of three months into his fourth term.
FDR’s power reached its apex after his 1936 landslide over Alf Landon, who carried only his native Vermont and Maine. In addition to winning 46 states, FDR brought his party to epic heights in the House and Senate. Democrats began 1937 holding a 333-89 edge in the House and a 76-18 edge in the 96-seat Senate.
During FDR’s first term, three Court decisions landed the Supremes in hot water with the administration and its allies in Congress. The Supreme Court decided these cases on what New Dealers called Black Monday (May 27, 1935).
The first case, Humphrey’s Executor v. U.S., involved FDR’s attempt to remove a member of the Federal Trade Commission, whose members are confirmed by the Senate. The Court held that the president lacked the power to do so.
The second case, Louisiana Joint Stock Land Bank v. Radford, involved a complex mortgage security interest the bank held on a farmer’s property and sought to take much of the property without paying “just compensation” per the Fifth Amendment. Rehnquist summarized the holding: “[H]owever great the urgencies created by the farm depression, Congress could not deprive the mortgage holder of so much of his security without paying compensation for it.”
In the third case, Schechter Poultry Corp. v. U.S., the Court struck down the National Industrial Recovery Act, thus invalidating the jewel in the New Deal crown. It held that Congress could not delegate its legislative authority in full to administrative agencies (the “non-delegation doctrine”).
But the proverbial judicial straw that finally broke the presidential camel’s back was the January 1936 Court decision U.S. v. Butler. The Court struck down the Agricultural Adjustment Act as an unconstitutional use of the federal taxing power to invade regulatory provinces ceded by the Constitution to the states.
FDR’s first version of his plan, unveiled February 5, 1937, would have added one new seat for each sitting justice over 70 — then six of the nine members of the Court — who did not elect to retire before the plan became law. At the time, there were four conservative justices, collectively termed by their critics “the four horsemen” (of the judicial apocalypse): Willis Van Devanter, George Sutherland, and Pierce Butler. Three justices were liberals: Louis Brandeis, Harlan Stone, and Benjamin Cardozo. Two justices were considered “swing” votes, both appointed by Hoover: Chief Justice Charles Evans Hughes and Associate Justice Owen Roberts.
FDR justified his court-packing plan on the age of the justices and their alleged inability to meet the Court workload. That flopped in the press — then mostly anti-FDR — with major papers controlled by what the blue-blood FDR termed “economic royalists.”
Chief Justice Charles Evans Hughes issued a letter, co-signed by justices Brandeis and Van Devanter, in which he vehemently denied that the Court could not handle its workload. One top FDR adviser, Robert H. Jackson, later said that this letter doomed FDR’s packing plan.
As Rehnquist recounts, the administration planned to start in the House of Representatives (where most legislation is supposed to originate) because its members are up for reelection every two years, and thus a popular president could put tremendous pressure on members to vote his way on major issues. But the House Judiciary Committee chairman, Hatton Sumners of Texas, was adamantly opposed to any plan to pack the Court, telling colleagues, “Boys, here’s where I cash in.”
Republicans in the Senate opposed FDR’s plan, but they remained silent, fearing that if the packing plan was viewed as a partisan issue it would turn out like the 1936 Democratic landslide. The Senate Majority Leader, Joe Robinson of Arkansas, would manage the legislative effort on behalf of FDR. The Democratic opposition in the Senate was led by Burton Wheeler, a gilt-edged progressive who had ardently campaigned for FDR in 1936, having supported the latter’s first-term accomplishments.
As opposition grew to FDR’s original scheme, Justice Van Devanter announced his retirement on May 18, some six weeks before the end of the Court’s first 1937 term. And on July 2, FDR unveiled a revised plan, having been told that there were not enough votes in the Senate to pass his first version. The age at which an additional justice would be added to the Court was raised to 75 with a limit of one new justice per year. Rehnquist notes that this was a minimal retreat. Given one appointment each in 1937 and 1938 plus replacing Van Devanter, FDR would have put three new justices on the Court within the first year.
Matters came to a head in mid-July when Joe Robinson dropped dead of heart failure. With some senators having personally pledged to Robinson that they would support the bill, the plan was dead upon his demise. The final Senate vote to recommit the bill was 70-20.
Rehnquist adds that supporters of the plan took a “lose a battle, win the war” view in that within four years FDR had replaced six of the nine justices. In all, FDR put eight justices on the bench.
Bottom Line: In light of her intense partisanship, Nancy Pelosi’s decision to avoid court-packing may fairly be termed astute political calculation. But it still goes into the record books. Comparing 1937 to the last decade’s assaults, what emerges most clearly is that (a) Democrats seem more united today than in 1937 in favoring court-packing, and (b) the dominant media has switched sides, from overwhelmingly opposing FDR’s plan to favoring or leaning towards such a move.
Rounds two (today’s court-packing) and three (calls on Justice Stephen Breyer to retire) will be covered in a second article.