Court-Packing, Chicago-Style

President Obama, Senator Reid, and Speaker Pelosi showed their ability to ruthlessly ram through their legislative agenda with a combination of procedural tricks, sleight-of-hand, and painful arm-twisting, all of which could happen again. They also hope to have a Supreme Court which will rubber-stamp their legislative agenda and thus guarantee its long-term survival. If one agrees with Santayana’s “those who cannot remember the past are condemned to repeat it,” then it is instructive to examine the way that President Franklin Delano Roosevelt viciously attacked and tried to control the Supreme Court in order to secure his New Deal agenda.

In 1935 the Court struck down as unconstitutional certain parts of FDR’s New Deal. The essence of the Court’s common-sense reasoning was that Congress, the legislative branch, may not avoid its lawmaking responsibilities and punt them to the President, the executive branch. Moreover, the Court in Humphrey’s Executor v. United States, 295 U.S. 602 (1935) further irked FDR because the Court held that FDR had to follow the law and could not arbitrarily fire a Federal Trade Commission commissioner, Mr. William Humphrey, a Republican whom FDR believed did not support the New Deal with sufficient enthusiasm.

FDR did not like that, because his New Deal depended on creating a massive federal regulatory bureaucracy within his executive branch control. So, on February 5, 1937, FDR announced his infamous “Court-Packing Plan,” directly attacked the Supreme Court, and planned to stuff the Court with his loyalist lackeys. FDR followed up with a March 9, 1937 Fireside Chat where he said that America needed his Court-Packing Plan and “must take action to save the Constitution from the Court, and the Court from itself.”

On March 29, 1937, the Supreme Court bowed to FDR’s unprecedented political attacks and decided three cases in favor of the New Deal. By 1941 the Supreme Court’s “Four Horsemen,” Justices Butler, McReynolds, Sutherland and Van Devanter, were gone, leaving no one who dared speak truth to power: that Congress cannot shirk its constitutional responsibilities and that the president must follow the law. Thus, the New Deal Juggernaut rolled full-steam ahead with no one left to protect the American people from the huge federal regulatory bureaucracy that still pervades every aspect of American life and even spawned a new area of law, Administrative Law.

Today there are and will be many legal challenges to the Obama-Pelosi agenda, including health-care, financial regulation, cap-and-trade, immigration, and whatever else lurks in their legislative pipeline.

When it comes to Supreme Court confirmation fights, however, the media often focuses on the nominee’s controversial personal problems, if any, and on hot-button social issues like abortion.

This time, let’s try something different. I expect President Obama to announce his Supreme Court nominee within the next week or so. Let’s raise the level of discussion and carefully analyze the nominee’s views on, for example, issues such as limits on executive branch authority and Commerce Clause power. Let’s also be mindful of history’s lessons. FDR’s hunger for rubber-stamp justices hurt America. President Obama may nominate whomever he likes, but we must not allow the Democrat Senate to bully us into accepting a rubber-stamp justice, or, even worse, a justice who self-rationalizes manipulating or ignoring the Constitution in order to impose preferred political or policy preferences from the bench.