The Dangerous Legacy of Court-Packing

Court-packing is a bad word, or at least it should be. It is the political takeover of the Supreme Court by the explicitly political branches and a rejection of the separation of powers.

Ultimately, court-packing invalidates the constitutional constraints on tyranny and our nation’s commitment to an independent judicial branch of government. It is a failed and dangerous concept.

In 1937, the Democratic-led Senate Judiciary Committee wrote of Franklin Roosevelt’s infamous court-packing plan:

[W]e recommend the rejection of this bill as a needless, futile, and utterly dangerous abandonment of constitutional principle . . . It 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.

Fast forward to 2020 and Joe Biden’s intentional evasiveness on court-packing. Brazenly, Biden recently said: “You’ll know my position on court-packing the day after the election.” Voters, he added, “don’t deserve” to know his opinion on court-packing.

Despite the startling arrogance and open elitism of Biden’s statements, they also show a seeming ignorance of Roosevelt’s original court-packing scheme and its intentions.

Near-Complete Presidential Control

As early as 1933, Roosevelt showed his purely political view of the Supreme Court, when he commented on how few Democrats were on the federal bench.

When the Supreme Court subsequently struck down key parts of FDR’s New Deal economic legislation, the president was furious and felt he needed to make changes. Roosevelt had an important choice to make. He could affirm the procedures of the written Constitution by pursuing an Article V constitutional amendment to grant Congress regulatory control over the economy, or he could pursue the illegitimate avenue of changing the Constitution through novel interpretation and undermining the independence of the court through threats and intimidation. 

Initially, Roosevelt seemed to make the correct choice. During the 1936 elections, he stated that a constitutional amendment allowing Congress to regulate the economy might be required; and indeed, he included such an amendment as part of the Democratic platform in the 1936 campaign. Roosevelt’s fidelity to constitutional norms was a ruse, however, and with the ink barely dry on his inauguration thank you notes, he chose to pursue a frontal assault on the separation of powers instead.

Roosevelt’s overwhelming electoral mandate in the 1936 presidential election seemed to give him the political capital needed to alter the Constitution properly through the amendment process. Yet, at the height of his political power and armed with immense political capital, Roosevelt rejected the Article V amendment option in favor of trying to pack the Supreme Court.

If Roosevelt had been successful, this court-packing plan would have given the president near-complete control over the judicial branch of government, thus breaking down our system’s reliance on the separation of powers as a cornerstone of our republic. 

Roosevelt sought to justify his decision in one of his famous “Fireside Chats.” In his view, the Constitution was merely whatever the Supreme Court says it is; and thus, an amendment was unnecessary. In this startling admission, Roosevelt expressed a view that reduced the Constitution to a mere tool of ideological power, rather than an expression of the solemn will of the people of the United States to ratify universal principles rooted in timeless standards of justice that exist beyond the political whims of the people at a given moment. Roosevelt’s remark was a stark expression of “legal realism,” which views the concept of law as fundamentally relativistic, rather than timeless and eternal.

Instead of introducing a proper constitutional amendment, Roosevelt introduced his infamous “court-packing plan” in February 1937. The legislation would have allowed for up to six additional Supreme Court justices to be added by the president and effectively would have reduced the Supreme Court to an arm of the executive branch. Understandably, the proposal was roundly criticized as a “sly attempt” to evade the lifetime tenure for judges, undermine their independence, and thereby diminish the role and power of the court. 

Switch in Time . . .

While the initial packing plan seemed doomed to failure, however, the intimidation aspect of the plan worked. The retirement of Justice Willis Van Devanter let Roosevelt alter the future balance of the court. Van Devanter’s retirement was quickly followed, in March, by the unfortunate, “switch in time that saved nine,” otherwise known as the court’s decision in West Coast Hotel Co. v. Parrish. That was the ruling that saw Justice Owen J. Roberts vote to uphold Washington’s minimum wage laws, thus signaling the court’s remarkable reversal and acceptance of the New Deal.

In June, Roosevelt received an unprecedented rebuke from both Democratic and Republican senators on the Judiciary Committee with the issue of its report. The bipartisan reproof said that FDR’s “court bill” was “an invasion of judicial power.” If enacted, it would “necessarily undermine our system.” It represented “the very thing against which the American Colonies revolted, and to prevent [that] which the Constitution was in every particular framed.”

One press source wrote that history hadn’t recorded a time when a president “was so scathingly indicted in a congressional committee report,” and the committee clearly inferred that the president had intentionally been deceitful. This report and the public outcry seemingly doomed the “court bill.” 

Even so, Roosevelt’s overall gambit had worked. In a short time, using intimidation, aided by retirement, and despite the inevitable failure of his initial “court-packing plan,” Roosevelt forced the court to change course from obstruction of the New Deal to complicity with it. Roosevelt achieved what he ultimately wanted.

Or did he? There is an oft-forgotten twist in this story.

Despite this turn of events, and despite the historic rebuke from the Senate Judiciary Committee, Roosevelt was still determined to pack the court; and in early June, he introduced a revised second version of the court-packing billThis version was nearly identical to the first. At Roosevelt’s behest, a delicate coalition was skillfully assembled by the arm-twisting, threats, and the personal cajoling of Senate Majority Leader Joseph Robinson (D-Ark.).

By the end of June, Robinson had secured the votes to pass the bill, and its prospects looked good. The general opinion was that the bill would pass, but those forecasts rested wholly on the personal efforts and charisma of Robinson. Ultimately, however, Roosevelt’s power grab would fail.

Suddenly and dramatically, Robinson died in the summer heat of his Washington, D.C. apartment, and his fragile majority quickly broke apart. While partisans quietly debated whether Robinson’s unfortunate demise was due to pure chance or divine intervention, a coalition of Democrats and Republicans was rapidly assembled and they drove a stake through the heart of Roosevelt’s plan; court-packing was finally fully defeated. 

It is worth considering why Roosevelt still pursued the court-packing plan even after the court had signaled its intent to surrender to his New Deal efforts. Progressivism, at its core, has a hatred of the system created by the American Founding, and it had long desired to strip the Constitution of its authority and structure, namely its checks and balances and separation of powers. 

Upsetting the Balance

Progressives desire a system steeped in “scientific” management by elites and rooted in simplistic democracy. Woodrow Wilson, for instance, had long dreamed of using the executive branch as a way of overcoming the checks and balances that prevented the administration of government by social elites. In the end, Roosevelt’s actions (and Biden’s rhetoric now) were perfectly consistent with the Left’s long-term goal for government by so-called “experts” and their disdain for input from the “common man.” This instinctive desire for elitism reveals the deep cynicism, philosophic hollowness, and lust for power that is fundamentally at the core of the modern Left.

Biden’s refusal to reject court-packing is evidence of his complicity in reviving a dangerous political scheme. To pack the court would be a move toward less accountability and the further consolidation and centralization of government power, by making the Supreme Court a purely ideological body answerable primarily to the president. As the Democratic Senate in 1937 reminded us, no American—whether Democrat or Republican—should want that. 

Our Constitution is one of balance; it’s one of separate branches designed to empower, but temper, public opinion; intended to harness the human ambition of great men and women to the public good, but all the same, restrain elites in their continual quest for domination. Court-packing is a mindless blow against this system.

And as we are reminded in reading the historic Senate report on FDR’s scheme, our Founders fought a revolution to resist the centralization of power in a single branch. As George Washington put it, “The spirit of encroachment tends to consolidate the powers of all the departments in one, and thus to create…a real despotism.” 

In FDR’s day, the American public saw court packing for the dangerous and disastrous idea that it is. Joe Biden apparently has forgotten this history. It is time we recall this dark time in American politics and renounce court packing for its undermining of the Constitution and the power grab that it clearly is. 

About Darren Patrick Guerra

Darren Patrick Guerra is a Professor of Political Science at Biola University in La Mirada, CA. He is the author of Perfecting the Constitution: The Case for the Article V Amendment Process. Darren publishes and speaks widely on issues of Constitutionalism.

Photo: Getty Images

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One response to “The Dangerous Legacy of Court-Packing”

  1. Someone should send this to Conrad Black so he can read it and stop mindlessly praising FDR