Franklin Roosevelt Tried to Pack the Supreme Court. Democrats Should Too.
The idea that Roosevelt’s court-packing plan ruined his legacy is a historical fallacy.
The hearings for Supreme Court nominee Brett Kavanaugh began yesterday in a predictable fashion. Republicans, giddy at the prospect of a conservative majority on the Court, have attempted to portray Kavanaugh as a typically qualified, non-controversial justice. Their work has dovetailed with a recent ad campaign in which Kavanaugh’s friends and colleagues have testified to his status as a respectable family man. Democrats, on the other hand, want to talk about Kavanaugh the man as little as possible. They would instead like to focus on Kavanaugh the jurist, or Kavanaugh the fifth vote to overturn Roe v. Wade or protect President Donald Trump from a subpoena.
Since Kavanaugh’s confirmation seems so likely, pundits have begun to speculate on how the Supreme Court will proceed with him as a member. Many on the left predict a conservative reign, with campaign finance reform, abortion rights, and health care all on the chopping block. Slate’s Mark Joseph Stern, one of Kavanaugh’s strongest critics, summed up his feelings on Kavanaugh’s jurisprudence when he wrote,
The judge is prone to wax poetic about liberty — then selectively apply this constitutional value in a manner that aligns perfectly with the Republican Party platform. Liberty for undocumented minors and Guantanamo detainees? No. Liberty for predatory lenders, industrial polluters, telecom monopolies, religious employers, Abu Ghraib abusers, and assault-weapon enthusiasts? Absolutely.”
Stern and others assume that these changes will be guaranteed and that Democrats are powerless to stop them. A handful of writers on the far left have argued that the Democrats should pack the Supreme Court, but the only precedent for stopping the Court was the Roosevelt administration, which introduced an idea to expand the Court that was soundly defeated and led to the administration’s ruin. Writing on the idea of court-packing in Vox, Dylan Matthews discussed the idea of court-packing and its potential implications: “court-packing merely leads to more games of constitutional hardball and enables a future president to push through legislation that makes him and his allies basically impossible to dislodge from power, with a packed Supreme Court that is unwilling and unable to stop him.”
But the story of Franklin Roosevelt’s court-packing plan is poorly understood today. While often viewed as a failed power grab by an overarching president, the 1937 effort was actually the culmination of several years of anger and consternation on the American left. Also, while the plan was not ultimately enacted, it did achieve the purpose of protecting the New Deal — -and it provided an example for current liberals to follow.
The traditional narrative about the court-packing plan and its effects appear in history textbooks written since the 1930s. In essence, this narrative describes the plan as an example of Franklin Roosevelt’s expansionary approach to the presidency and his feeling of invincibility after his landslide 1936 reelection campaign. For years, his domestic agenda had been hobbled by the Supreme Court, which was full of reactionaries who had mostly been appointed prior to his presidency. Roosevelt believed he could use the political capital from his 1936 victory to pass a law that gave the president the power to expand the court and replace justices who had reached an advanced age.
According to the traditional narrative, the country balked at this idea. It was “court packing,” an effort to usurp the court’s power. Liberals and conservatives fought back, and the Court stripped away Roosevelt’s initiative by starting to uphold some of his policies, the so-called “switch in time that saved nine.” After this significant defeat, Roosevelt’s opponents felt emboldened. They united in a conservative coalition that fought tooth and nail against any expansion of New Deal policies, and Roosevelt lost considerable support in the 1938 midterm elections that followed.
It is this potential fate that worries liberals in the wake of Kavanaugh’s confirmation. But what this narrative leaves out is what happened to the Democratic Party between 1935 and the announcement of Roosevelt’s plan in 1937. In 1935, the Court issued its ruling declaring the National Recovery Administration as unconstitutional,followed in 1936 by a decision against the Agricultural Adjustment Act. These decisions angered not just the president but the entire Democratic Party. Democrats debated restricting the power of judicial review. The Party’s 1936 platform called for a constitutional amendment to protect and enshrine the New Deal.¹ The Court’s decisions prompted nationwide concern and speculation as to the best way to protect Roosevelt’s economic legacy.
It was this earlier pressure, not the announcement of the court-packing plan, that led Associate Justice Owen Roberts to begin supporting New Deal legislation. Roosevelt’s plan, therefore, succeeded not as a new judicial regimen but as a threat. Roosevelt knew that the only way the Court would modernize itself for the New Deal era was in response to a serious challenge to its independence. In this effort, he achieved a court that would support his approach to social legislation for decades to come. Roosevelt’s subsequent drop in popularity was due more to the 1937 recession and the normal cycle of politics for two-term presidents than indignation about his Supreme Court policies.
Franklin Roosevelt’s court-packing plan presents a framework for the Democratic response to an overzealous Court, a potential reality once Democrats take control of the government. Democrats should avoid Roosevelt’s singular identification of the plan with the presidency and instead propose a plan conceived by Congress with the Democratic president’s support. Such a plan will be essential to their governing future. If Democrats are elected to pass a slate of laws that are declared unconstitutional for purely ideological reasons, the voters of the country will not punish the Court; they will punish Democrats. It is the responsibility of Democrats to govern within the boundaries of the Constitution and to fight back if the Constitution is manipulated to undermine them. Democrats might not need to fight back. But if they do, they can look back to Roosevelt to find a path forward.
- George Brown Tindall, The Emergence of the New South, 1913–1945, Louisiana State University Press, 1967, 619.