The Dangerous History Of Court Packing

“A 1937 political cartoon with the caption ‘Do We Want A Ventriloquist Act In The Supreme Court?’ which was a criticism of FDR’s New Deal, depicting President Franklin D. Roosevelt with six new judges likely to be FDR puppets.”

By Jack Elbaum

The Reemergence Of A Once Shunned Idea

History seemed to have run its course on proposals to add seats to the Supreme Court. Commonly referred to as “court packing,” it has been an idea which the American people have consistently and unwaveringly opposed since its inception. In 2019, a poll from Rasmussen found that 55% of American oppose court packing while only 27% support it. More recently, a Fox News poll found that 57% of Americans oppose court packing and a Washington Examiner/YouGov poll found that 47% of American oppose it, with only 34% supporting it.

Needless to say, the American people are not a fan of the idea. With that said, it seems that some in the political class — both in the media and politicians alike — are embracing the once rejected idea in the wake of the confirmation of Justice Amy Coney Barrett to the Supreme Court.  

From their perspective, the argument goes as follows: with the confirmation of Amy Coney Barrett, the court will now have a 6-3 conservative majority which threatens, among other things, the very nature of our democracy. Additionally, they contend that the way in which the majority was procured — namely, by stonewalling Judge Merrick Garland — abrogated democratic norms. Therefore, packing the court in retaliation is the only choice they have.

While this may be a compelling case to some, the truth is that packing the court represents a far greater threat to the core principles of our Republic than any 6-3 conservative majority could. Moreover, the way to retaliate against a perceived violation of democratic norms is not to call into question a separate set of norms along with a key American institution — the Supreme Court. The long-term consequences of court expansion are dire, and one can’t protect democratic norms by attacking them. The history of court packing demonstrates why this is the case.

FDR and Court Packing

Franklin Delano Roosevelt won the 1932 election against Herbert Hoover in a landslide with 472 electoral votes. Expected to address the worst economic crisis in American history in a bold way, FDR wasted little time in pushing through his agenda to combat the Great Depression. With unemployment consistently above 20%, there was great urgency to get comprehensive legislation passed.

However, beginning in January of 1935, the Supreme Court began to strike down various laws — which were passed as part of FDR’s New Deal — as unconstitutional. Many of these decisions were not even close. Panama Refining Co. v. Ryan was decided 8-1; A.L.A. Schechter Poultry Corporation v. United States was decided 9-0; Louisville Joint Stock Land Bank v. Radford was decided 9-0 as well. In short, FDR’s plans to put the country on a road to recovery were being stopped cold at the Supreme Court.

By 1936, while the Court was continuing to strike down laws, it was being done with closer votes of 5-4 and 6-3. FDR was understandably frustrated. After he won his re-election campaign in another landslide, he proposed an idea in early 1937 which would add up to six Justices to the Supreme Court. The reason was quite clear: he wanted to ensure that the court would stop blocking his plans.

This was, of course, an unprecedented imposition on the independence of the Court. For a President to threaten to fundamentally change the court in order to accrue decisions which benefited him politically is truly astonishing. Just as astonishing — proving the critics of the plan correct — was the Court’s response.

Associate Justice Owen Roberts essentially shifted his position on key issues in relation to FDR’s New Deal after his court packing plan was unveiled. According to George Mason University, this was conventionally seen as a “strategic move to protect the Court’s integrity and independence.” After Justice Roberts’s shift, every single remaining New Deal law, without exception, which was brought to the court was ruled constitutional.

Prior to FDR’s court packing plan, 66% of the New Deal cases brought to the court ended with the court ruling the law unconstitutional. After the plan, 100% were ruled constitutional.

While Justice Roberts’s shift may have saved the independence of the Court in the long-run, the short-term consequence was exactly what FDR aimed for: influencing the court in pursuit of political gain. What has been traditionally termed the “switch in time to save nine,” is exactly what the dangers of court packing are. The threat of packing the court is just as powerful as actually carrying it out. 

No matter how noble one believes their own goals to be, it does not change the fact that distortion of American institutions in the pursuit of those goals is dangerous. 

One of the beckrock principles of liberal democracy must be an independent judiciary. Expanding the court now could put that at risk. Almost 85 years after FDR, it may seem that the political winds of the moment are blowing in the direction of re-embracing this old idea. However, in order to protect our Republic, we should carefully consider second and third-order consequences before submitting to the political passions of the moment.

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