Among the most devastating long-term impacts that Donald Trump’s wretched presidency will have on the United States is its entrenchment of movement conservatism on the Supreme Court. That has me and others thinking about how a future progressive president and Congress can overcome a clash with a jerry-rigged conservative Court.
Congress has the power to rebalance the Court by adding new justices. That power was most infamously invoked by Franklin Roosevelt in 1937 in his doomed “court-packing” plan. Any effort to reinvigorate this vital legislative check on the Court’s power must learn from the missteps of Roosevelt’s effort.
The basic narrative of the rise and fall of Roosevelt’s court-packing plan comes from Jeff Shesol’s excellent Supreme Power: Franklin Roosevelt vs. the Supreme Court. Throughout his first term in office, Roosevelt watched helplessly as the Supreme Court invalidated massive cornerstones of his Great Depression relief agenda. A conservative majority deeply committed to protecting the freedom of contract and resistant to government efforts to regulate the economy struck down the National Industrial Recovery Act, the Agricultural Adjustment Act, regulations of the coal industry, and state minimum wage laws.
In February 1937, Roosevelt proposed legislation that would increase the size of the Court, allowing him to appoint one new justice for every current justice that failed to retire before reaching age 70. This would have allowed him to quickly appoint as many as six new justices.
On the heels of his landslide reelection, Roosevelt was politically dominant in early 1937. But by July, his Court reform plan was dead.
What happened? There are lessons to be learned from Roosevelt’s surprising legislative defeat:
Don’t spring Court reform on the public. Even though Roosevelt’s frustration with the Supreme Court was clear by the end of his first term, he didn’t campaign on adding seats to the Court. He feared that this would give the Republicans an issue to campaign on in opposition. Instead, he waited until after reelection to propose his Court plan. This caught the public off guard, and left them divided and confused. It also deprived the Court plan of a claim to a popular mandate, sapping it of political force and legitimacy in Congress.
Keep a variety of Court reform options on the table. Many different ideas for dealing with the conservative Court had percolated in Congress for years. In 1924, Progressive Party presidential candidate Sen. Robert LaFollette ran on a proposed constitutional amendment allowing Congress to overrule bad Supreme Court decisions. Others proposed constitutional amendments requiring a super-majority of the Supreme Court to overturn an act of Congress. Still others proposed to limit the Court’s jurisdiction or to strip its power of judicial review of acts of Congress entirely.
Rather than work with Congress to build on one of these preexisting fixes, Roosevelt imposed his own plan on legislators. And Roosevelt kept Congress entirely in the dark while he developed his Court plan. This backfired badly. There was no buy-in or investment from congressional leaders, leaving ample space for a rebellion to foment.
Level with the public about the real reasons we need Court reform. It was clear to everyone that Roosevelt’s clash with the Court was a philosophical one: an ideological Supreme Court was handcuffing Roosevelt’s ability to fix the economy. Yet the president opted to hide the true justification for his Court plan in his public messaging. Instead, he chose to publicly justify the Court plan on technocratic administrative grounds, arguing that the elderly Court could not keep up with its caseload, and needed more justices.
This too-cute obfuscation was a mistake. As Warner Gardner, the young administration lawyer tasked with writing the Court reform bill, observed, “ a constitutional confrontation that men could fight for” became a “trick,” an “effort to market deceit” thanks to FDR’s spurious justification. Solicitor General Robert Jackson also urged Roosevelt to emphasize the “fighting issues” of the Court’s ideological and extreme reasoning. Eventually, Roosevelt himself admitted that it had been a mistake not to lead with what he called the Court’s “real mischief.”
Court reform triggered underlying racial fears among Southern Democrats. Congressional Democrats held dominant majorities during Roosevelt’s presidency. But these majorities depended on the party’s wing of powerful Southern segregationists. Southern Democrats feared that a Court packed by Roosevelt’s justices would vote to end segregation.
While Western and Midwestern senators like Burton Wheeler led opposition to the Court plan, the Southerners were crucial to sustaining opposition. Opposition leaders planned to attach an anti-lynching poison pill amendment to court-packing bill to get Southern Democrats to join filibuster. This was a reminder to Southerners that a Roosevelt court could someday uphold a federal anti-lynching law.
All of this made the court-packing fight a “struggle for survival” for segregationists, and a “last stand for the Confederacy,” Shesol writes. The court-packing fight marked the beginning of the partisan realignment that gradually occurred over the ensuing four decades, as conservative Southern Democrats first split with the Democratic Party and eventually fully migrated to the Republican Party.
Because court-packing failed in 1937, it would be nearly another two decades before the Supreme Court began challenging segregation. In a parallel universe where Roosevelt succeeded, however, segregation could have been taken down much earlier.
Roosevelt’s court-packing plan actually succeeded. The court-packing bill ultimately had the air sucked out of it thanks to external events – and capitulations. Most important was the famous “switch in time” by swing justice Owen Roberts, who joined Chief Justice Charles Evan Hughes in siding with the Court’s three liberals to sustain Roosevelt’s New Deal legislation. First, in late March 1939, that configuration banded together to uphold state minimum wage legislation in West Coast Hotel v. Parrish, an about-face from just a year earlier when the Court struck down a similar law.
Next, in April, the same justices upheld the National Labor Relations Act in NLRB v. Jones & Laughlin Steel. The next month, the Court upheld FDR’s Social Security Act in a pair of cases. Those decisions have widely been seen as a strategic surrender by Roberts and Hughes, who “evolved” their views on economic legislation to stave off FDR’s attempt to overpower the Court.
The final nail in Court reform’s coffin came when Justice William Van Devanter, one of the Court’s conservatives, announced his retirement in June. This gave FDR his first chance to appoint a new justice since taking office.
Ultimately, pressure from FDR’s court-packing plan succeeded in failure. FDR achieved his desired ends despite his legislation crashing and burning. The court-packing plan sparked a constitutional revolution, where the Court rapidly reconsidered old dogma on the constitutionality of economic regulation. And thanks to a series of ensuing retirements, by 1940, Roosevelt had appointed five of the Court’s nine justices.
Roosevelt saw court-packing as necessary to make government work and to stave off tyranny. FDR warned that in 1937, “To stand still was to invite disaster.” The Great Depression had devastated millions of people. Tyrannical governments were taking hold abroad. Unless democracy in the United States could be made to work for the “forgotten man at the bottom,” he said, there would be a social and economic collapse, which could set the stage for a tyrant here, too. Government dysfunction caused by a conservative Supreme Court that refused to get with the times was not just a political foe, but an existential threat to American democracy.
We now see the type of demagogue that can win power when voters feel like government isn’t working for them. Progressives and institutionalists alike who wish to avoid another Trump must be sure that a Supreme Court unduly packed with conservatives does not stand in the way of making government responsive to the needs of the people and the crises of our time, whatever it takes.