The biggest story of last year, measured by cable news coverage, was Brett Kavanaugh’s Supreme Court confirmation. There was something in it to horrify everyone and everyone was left dissatisfied, believing that, when it comes to the Court, we cannot go on this way.
The solution? Pack it, some leading Democrats say.
The Court is established in the Constitution but its composition is shaped by Congress, first in 1789, with a chief justice and five associate justices. It grew to seven members in 1807, nine in 1837, 10 in 1863 and back to nine in 1869.
From 1860 to 1932, Republicans had a near lock on the White House. Franklin D. Roosevelt took it back for the Democrats in 1932 with the onslaught of the Depression. In 1936, he won a landslide re-election over one-term Kansas governor Alf Landon. Democrats also added to their numbers in both houses of Congress that year – the most lopsided majorities a president had since the Republicans after the Civil War.
FDR had a new mandate for his New Deal programs. There was one catch: The Court had struck down several of them in his first term. As FDR saw it, the Court was out of step with Democratic voters.
So FDR asked Congress to add six justices to the Court whom he could name. His Judicial Procedures Reform Bill died a harsh, lingering death in the Senate. It attracted some of the toughest criticism FDR faced and it pared support for further New Deal legislation.
That is one version of the story, in which FDR overreaches and is smacked down. There is another.
From the end of the 19th century, the Court had been ruling for property and capital against state intrusion such as labor regulation. By 1937, it was divided between four conservatives and three liberals, with two swing votes, Chief Justice Charles Evans Hughes and Justice Owen Roberts.
Roosevelt took his Court-packing plan to the public with a radio address on March 9, saying the nation “must take action to save the Constitution from the Court, and the Court from itself.” Three weeks later, the Court published its opinion in the case of West Coast Hotel Co. v. Parrish, holding, 5-4, with Roberts in the majority, that a minimum wage in Washington state was constitutional. It’s been called “the switch in time that saved nine.” This is the second version of the story, in which FDR is the winner after all, getting a Court more to his liking, the end justifying the means.
There is evidence that Roberts had gone over to the New Deal side in West Coast Hotel before March 9, however, and even before FDR revealed his plan. This is the third version of this story: It was all for naught. In any case, what FDR tried to do did not produce an enduring ideological change in the Court, and it is not clear that anything could or should – but that has not kept the idea from being revived.
Imagine Bernie Sanders winning the presidency in 2020. The Democrats keep the House, take the Senate and enact laws based on the Green New Deal resolution, nationalizing energy and health care. Sanders signs, only to have them cast aside by 5-4 and 6-3 decisions of the Court, upholding the rights of property and contract.
Sanders addresses the nation (on Facebook), saying, much as FDR did in 1937, “The Courts have cast doubts on the ability of the elected Congress to protect us against catastrophe, by holding that the right under a private contract to exact a pound of flesh is more sacred than an enduring nation.”
He asks Congress to let him add six socialists to the Court.
That is not unlike what we are seeing now with the initiative Pack The Courts. One of its leaders is former Hillary Clinton spokesperson Brian Fallon. Sean McElwee, its director of research, “succeeded last year in pushing #AbolishIce into the Democratic Party mainstream and hopes court packing will be next by focusing on the 2020 presidential candidates,” Politico reported in February.
Another scheme, that seems to have originated with the Yale Law Journal, would have five justices appointed by Democratic presidents, five appointed by Republican presidents and five more who must be unanimously selected from the appellate bench by those 10. The idea is to proof the Court against ideological tampering. It is about time.