Many Americans may have heard about how President Franklin Roosevelt’s proposed court-packing scheme failed in the 1930s. During Roosevelt’s first term, the Supreme Court struck down several laws enacted to address the Great Depression because they exceeded Congress’ power.
In 1937, after a landslide reelection and massive Democratic majorities in Congress, Roosevelt proposed a plan that would add up to six more Supreme Court justices if its more senior (and problematic) members did not retire. He said he wanted to appoint justices who would “enlarge constitutional power” so that Congress could address “extraordinary conditions.”
Congress, led by Roosevelt’s own Democratic Party, said no. The Senate Judiciary Committee report opposed it, calling it “an attempt to change the course of judicial decisions” by “neutralizing the views of some of its present members.”
This effort to “overwhelm them with new members,” however, would “undermine the independence of the courts” and “expand political control” over the judicial branch. Three-quarters of the senators who voted to reject the plan in July 1937 were Democrats.
President Joe Biden has convened a commission to evaluate changes to the Supreme Court, including court packing, which met for the third time earlier this week.
.@StephenESachs "The public will see through efforts to recast courtpacking as “court expansion,” jurisdiction-stripping as “jurisdiction channeling."... It will see through efforts to pursue short-term partisan payback under the guise of long-term reform."https://t.co/C5OG0opw3E— RNLA ⚖️ (@TheRepLawyer) July 21, 2021
At that meeting, the co-chair of the Supreme Court Practitioners' Committee voiced opposition court packing:
“A larger bench could make arguments less productive, deliberations more difficult and yield even more opinions with less clarity in the law,” she said.
Despite court packing being a major topic of discussion by his commission, Joe Biden has refused to say where he stands on the issue since taking office. Professor Jonathan Turley wrote:
To this day, Biden has refused to state his position. Instead, he has created a lopsided commission to study court-packing and other radical proposals to “reform” the court, including creating a new court to deal solely with constitutional questions. The commission has lined up witnesses like Christopher Kang, co-founder and chief counsel of the pro-court-packing group Demand Justice, which has been criticized for an insulting billboard campaign to pressure Justice Stephen Breyer to retire. Many of the commission's members and witnesses supported the court when it was adopting their interpretations of the Constitution — but now that a court majority disagrees with them, it must be packed or replaced. Others are challenging the very notion of “judicial review” as inimical to democracy; Nikolas Bowie, an assistant professor at Harvard Law School, labeled judicial review as an “antidemocratic superweapon” that should be curtailed in the name of justice and equity.
Most citizens consider such proposals as absurd. However, the commission is composed of members taken from law faculties that run from the left to the far left, who treat these proposals as perfectly sensible.
Biden knows this is utterly bonkers, but he lacks the political courage to stand up to the far left and say: “Enough! We are not going to pack the court to achieve an immediate liberal majority. We are not going to take an axe to judicial review to make Congress, rather than the courts, the final arbiters on legal questions.”
Court packing is a dangerous plan to undermine the United States Supreme Court and should be opposed by those on both sides of the aisle. As Republican Leader McConnell points out, court packing was a bad idea in 1937 and still is today.
On this date in 1937, the Senate rejected FDR’s proposal to pack the Supreme Court.— Leader McConnell (@LeaderMcConnell) July 22, 2021
This attempted unprincipled power grab has been viewed as a huge mistake ever since.
Politicians taking over and delegitimizing the Court was an awful idea 84 years ago. It still is today.