February 17, 2009 – In 1936, President Franklin Roosevelt was not happy with the Supreme Court. The Court had declared a number of the measures he was trying to implement in the name of fighting the Depression unconstitutional. Effectively, the Court was telling Roosevelt that he was meddling in state matters where the federal government didn’t have jurisdiction. So a dirty little trick was hatched, and in 1937 the administration advanced a proposal to stack the Court. Although the proposal failed, it created an environment that called the independence of the court system into question and in which the Court was actually afraid to overturn legislation in the name of the Constitution. And now a group of 31 intellectuals and former politicians with some of the most liberal leanings in the country are proposing that Congress take up a similar measure.
Roosevelt’s proposal was simple. He wanted Congress to allow him to make one judicial appointment for every federal judge who served past the age of 70 years and six months. This would have allowed him to appoint six new Supreme Court Justices as well as 44 other appointments to lower courts. Because the Supreme Court had been divided on a number of decisions regarding the New Deal, the scheme would have assured Roosevelt that the Court would no longer overturn his proposed laws.
As it turned out, just the threat of the court packing scheme was enough to stop the Court from voting against him. And its effect was profound. In fact, from 1937 to 1995, not one single piece of legislation passed by Congress and signed into law by a President was declared unconstitutional. And during that same period of time, the federal government began to regulate everything from drug usage to the number of hours per day that schools are required to teach. In short, Roosevelt’s plan allowed the federal government to not only intrude on every day life, but to heavily regulate it.
The new proposal being put forth is called the Supreme Court Renewal Act of 2009. It differs in certain respects from the 1937 proposal but its effect would be similar. Among other things, it would allow the President and Congress to appoint a new Supreme Court Justice every two years without forcing the retirement of sitting justices, rotate the position of Chief Justice and force the court to decide cases it doesn’t want by placing the decision for which cases are heard in the hands of lower court judges.
The effect of the proposal would be to grow the size of the court and to politicize it. Sitting Presidents would have much greater influence over the court than they currently do. No longer could decisions rendered by the court be considered independent.
The proposal would also put much more influence into the hands of lower courts. With some limitations, those deciding which cases the Court should hear could effectively avoid having their decisions overturned by not submitting certain cases to the review process. This is neither desirable nor efficient.
To understand the reason for the proposal, you really need to take a look at those who are making it. Vikram D. Amar is a law professor at Berkley and UC Davis and has received awards from the ACLU. Paul D. Carrington is a professor at Duke who has openly lamented about the removal of Rose Bird - who was ultra-liberal even by California standards - by California voters as Chief Justice of the California Supreme Court. (Note: As a native Californian who remembers Rose Bird vividly, I can tell you that she deserved to be shown the door.) Lino A. Graglia, although leaning conservative in many areas, has compared the US Supreme Court to Iran’s “grand council of ayatollahs” and argues that the courts should be used to pursue social changes. And that covers just a few of the thirty one people who are making the proposal to Congress. Most of the others have similar credentials. These so called intellectuals are largely opposed to the idea of a conservative Supreme Court.
The purpose of the Supreme Court is not, and should not be, to advance political views or a social agenda. The Court is there to insure that laws are constitutional and applied as intended by Congress. If the Court becomes stacked or more political, the Constitution is likely to take a back seat to the political winds of the day; a situation that would jeopardize each of our constitutional rights.
It is also important to note that an independent judiciary is constitutionally required. The changes being proposed by this “group of 31” would certainly bring that independence into question.
But the risk posed by this proposal is real. Rahm Emmanuel, President Obama’s chief of staff has said that “you never want to let a serious crisis go to waste.” And the circumstanced under which Obama comes to office are all to similar to those surrounding FDR’s assent. This means that the proposal can’t simply be dismissed.
This new scheme to stack the court must be viewed with great concern by anyone who believes in the principles laid out in the Constitution. It is worth noting that many years after Roosevelt pushed through his New Deal, one of its chief architects – Rexford Tugwell – said of it, “To the extent that these policies developed, they were the tortured interpretations of a document (the Constitution) intended to prevent them.” He is clearly saying that the Roosevelt administration understood that the New Deal was unconstitutional but that they didn’t really care.
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