How Progressives Could Use FDR's Losing Court Strategy to Win
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In light of Anthony Kennedy’s retirement, this could be progressives’ best hope.
By Nick Fouriezos
The history books call it Black Monday. On May 27, 1935, a conservative Supreme Court struck down a key provision of Franklin Delano Roosevelt’s New Deal. Furious, the progressive president staged a scorching press conference in the Oval Office, memorably complaining for more than an hour that the court was returning to a “horse and buggy” definition of interstate commerce.
It was a losing battle, though. Roosevelt spent the rest of the 1935–36 Congressional session watching his signature legislative achievements dismantled — everything from social security to farming regulations and labor rights — based on a narrow reading of the Constitution’s due process clause. Essentially, the high court ruled that the federal government had no role in regulating the economy. One reporter likened the situation in Washington to “the end of a Shakespearean tragedy, where the stage is strewn with dead bodies,” recalls historian Jeff Shesol, author of Supreme Power, which recounts the struggle.
This time Roosevelt went for shock and awe, announcing a plan to expand the Supreme Court to 15 justices and install six new loyalists.
“The dead bodies … were New Deal programs,” Shesol clarifies. The situation bubbled over a year later when the court, by a 5-to-4 vote, struck down a New York state law providing a minimum wage for women and child workers. Roosevelt invited reporters to the Oval Office once more, declaring that the highest court of the land wasn’t just against the feds, but against all bodies of law, creating a “‘no man’s land’ where no Government — State or Federal — can function.”
Then, as now, frustration with the Supreme Court was high, as a sense of partisan bias and judicial unfairness reached a tipping point. Sure, Democrats like Roosevelt were trying to achieve major reform amid a severe economic depression, while modern liberal concerns are more concerned with protecting past progressive victories, such as Roe vs. Wade and the Affordable Care Act.
But the sense of a mounting constitutional crisis was similar. And Roosevelt, after winning a landslide re-election in 1936, decided to mount an aggressive and improbable campaign to pack the court in his favor — a strategy back in the news now that Justice Anthony Kennedy’s retirement has spurred calls from some quarters for liberals to follow in FDR’s footsteps.
Of course, progressives “are assuming a pretty heroic thing: that they can capture both houses in Congress and the presidency in a relatively short amount of time,” says Tom Ginsburg, an international law professor at the University of Chicago. As of now, Republicans control Congress and the White House; they have majorities in most of the governorships and statehouses too. Nevertheless, here’s the thinking: If Democrats can retake Congress and the presidency, they could propose to expand the Supreme Court — from nine justices to 11 or more. Then a Democrat president could fill those new slots, effectively neutering the court’s current conservative bent.
If that seems drastic, remember a few things. First, no constitutional requirement says there have to be nine justices (in the 19th century, that number changed at least seven times). Second, Democrats (with the help of moderate Republicans) bounced arch-conservative Ronald Reagan appointee Robert Bork in 1987 and axed the filibuster rule for lower court appointees in 2013. Republicans refused a hearing for Barack Obama’s high court nominee Merrick Garland in 2016, then eliminated the filibuster for Supreme nominees in 2017 so they could push Neil Gorsuch through. “It’s been a tit-for-tat game where both sides are escalating,” Ginsburg says. “Where it ends, who knows.”
For Roosevelt, it began with a plan far more ambitious than the ones proposed by progressives today. “Generally, Roosevelt told his cabinet that court packing was a ‘distasteful’ option,” Shesol says. But faced with a court striking down all his meaningful work, his Justice Department considered hundreds of proposals, including term limits on Supreme Court justices. Most of those methods, though, involved passing a constitutional amendment. “They came around to the view that the quickest, neatest solution would be to pack the court,” Shesol says.
So, on Feb. 5, 1937, Roosevelt organized another press gaggle in the Oval Office. This time he went for shock and awe, announcing a plan to expand the Supreme Court to 15 justices and install six new loyalists. His argument was curious: Rather than focus on the constitutional crisis the country faced, he was “dishonest about his motivation,” Shesol says, claiming the existing justices were old, slow and behind on their work — the latter charge was easily proven false.
The surprise element didn’t go over well in the Senate. The president’s prewritten bill was read aloud on the floor … and Vice President John Nance Garner gave it a thumbs-down. It was “an incitement to rebellion,” as Shesol puts it. “What had been a battle for years between Roosevelt and the court quickly became a battle of supremacy between Roosevelt and the Congress.”
The debacle ruined Roosevelt’s second-term goals, although it did put enough pressure on Justice Owen Roberts to flip his support from conservative to liberal that summer. The 5-to-4 court now tilted Roosevelt’s way, and his administration passed legislation that has profoundly shaped American life.
Despite Roosevelt’s political failure, there are lessons to be learned from his gambit. “As much opposition as it generated in the country and Congress, the public was pretty evenly split over the course of those six months,” Shesol notes. For those who are currently looking to pack courts, the question likely isn’t whether it’s the right thing to do — it’s whether they can build enough public support to get away with it.