Democrats today should listen to Democrats in 1937, who rejected FDR’s scheme.
FDR’s Court-packing scheme, wrote the Democrat-controlled Senate Judiciary Committee in 1937, “is a measure which should be so emphatically rejected that its parallel will never again be presented to the free representatives of the free people of America.”
Today, modern progressives, intent on centralizing state power and nullifying constitutional protections for the minority, disagree. After spending four years delegitimizing the Supreme Court, they’ve convinced Joe Biden to create the “Presidential Commission on the Supreme Court,” which is another step in normalizing the idea of packing the Supreme Court.
It’s worth noting that even Justice Stephen Breyer warned that “alteration motivated by the perception of political influence” would erode trust in the rule of law. “Nine seems to be a good number. It’s been that way for a long time,” liberal icon Ruth Bader Ginsburg told NPR in 2019. “I think it was a bad idea when President Franklin Roosevelt tried to pack the court.”
Indeed, it was. Like Roosevelt’s transparently illiberal efforts, the modern case for Court-packing is predicated on little more than grabbing power. The idea was revived by contemporary Democrats because they were displeased that the duly elected president and a duly elected Senate followed the constitutionally stipulated guidelines for placing highly qualified jurists they disliked on the Court.
FDR had revived a Woodrow Wilson plan to arbitrarily place his political allies on the courts — one for every judge over 70 years old, meaning six additional Supreme Court justices at the time. This was even too much for the normally pliant New Deal Democrats to swallow. And, so, the Senate Judiciary Committee issued an “Adverse Report” to the plan on June 7, 1937, which still remains the most devastating critique of Court-packing.
The plan, Democrats noted, would undermine the separation of powers:
It applies force to the judiciary and in its initial and ultimate effect would undermine the independence of the courts.
The plan would severely damage the intent of the Constitution itself:
The theory of the bill is in direct violation of the spirit of the American Constitution and its employment would permit alteration of the Constitution without the people’s consent or approval; it undermines the protection our constitution system gives to minorities and is subversive of the rights of individuals.
It would place fleeting partisan desires above the long-term health of the republic:
For the protection of the people, for the preservation of the rights of the individual, for the maintenance of the liberties of minorities, for maintaining the checks and balances of our dual system, the three branches of the government were so constituted that the independent expression of honest difference of opinion could never be restrained in the people’s servants and no one branch could overawe or subjugate the others. That is the American system. It is immeasurably more important, immeasurably more sacred to the people of America, indeed, to the people of all the world than the immediate adoption of any legislation however beneficial.
In summation:
- “We recommend the rejection of this bill as a needless, futile, and utterly dangerous abandonment of constitutional principle.”
- “It would subjugate the courts to the will of Congress and the President and thereby destroy the independence of the judiciary, the only certain shield of individual rights.”
- “Under the form of the Constitution it seeks to do that which is unconstitutional.”
- “Its ultimate operation would be to make this government one of men rather than one of law, and its practical operation would be to make the Constitution what the executive or legislative branches of the government choose to say it is — an interpretation to be changed with each change of administration.”
Those are just some of the highlights. Read the whole thing here.