One answer is political malpractice. Another answer: complicity. Party leaders may be sending out fundraising emails slamming the John Roberts Court, but they have eschewed court expansion, halted the once-common practice of legislatively overriding justices, and declined to quickly fill lower-court vacancies before a midterm election that could eliminate their Senate majority.
But incompetence and corruption are not the whole story. Democrats have almost certainly also internalized the tale told about the party’s greatest president — the one alleging that Franklin Roosevelt epically failed by challenging the Supreme Court’s power in the late 1930s. In the popular telling, FDR got greedy, tried to pack the court with his ideological allies, but a court-loving public saw it as a crass power grab and unacceptable violation of norms, dooming the initiative and preserving equilibrium. Cue inspiring West Wing music as the republic was saved.
This cartoon has become the key cautionary tale designed to deter any challenge to a court that has been one of the establishment’s last lines of defense. But here’s the inconvenient fact: the story is bullshit — or at least significantly more complicated than the fable.
In truth, Roosevelt did not succeed in packing the court — but his court expansion initiative did succeed in taming the court, which is exactly what Democrats must do right now.
“A Choice Between Substantive Policy and Structural Integrity”
As recounted in Supreme Power, Roosevelt in 1932 ignited a firestorm when he dared to utter a taboo truth during a Baltimore speech at the end of that year’s presidential campaign. He declared that Americans were being crushed by government policies spearheaded by “the Republican Party [which] was in complete control of all branches of the federal government — the Executive, the Senate, the House of Representatives and, I might add for good measure, the Supreme Court as well.”
“Roosevelt Says GOP Has Had Supreme Court Control Since 1929,” blared the front page of the Washington Post, in an article scandalizing the idea that the court had become a political weapon.
In the ensuing years, the court’s conservative block tried to block and dismantle the New Deal program Roosevelt was elected to pursue. In 1935 and 1936, the court’s five conservative justices went on a rampage.
Smithsonian Magazine wrote that the Supreme Court in that time “struck down more significant acts of Congress — including the two foundation stones, the [National Recovery Act] and the [Agricultural Adjustment Act], of Roosevelt’s program — than at any other time in the nation’s history, before or since.” The magazine noted that one decision “destroyed FDR’s plan for industrial recovery” and another “annihilated his farm program.”
Soon after he was reelected in 1936, Roosevelt decided that a direct confrontation with the court was the only way to realize his agenda. He didn’t pretend that the court was some apolitical bastion of dispassionate integrity — he saw it for what it was: a political weapon literally run by a former Republican nominee for president.
In 1937, Roosevelt unveiled his plan to expand the court by allowing presidents to add new justices when any current justice declined to retire after age seventy. He warned that without expansion, the Supreme Court was “coming more and more to constitute a scattered, loosely organized and slowly operating third house of the national legislature.”
In history books and modern punditry, this story then simply ends with the plan dying in Congress — allegedly because Americans pulverized by the Great Depression nonetheless loved the court that was kicking them in the face.
However, a study of public opinion and the court’s moves tell a much different tale of a president and his party losing a closely fought battle but winning a larger war.
The analysis from Ohio State University political scientist Gregory Caldeira shows that Gallup polls found the public was hardly enamored with the court — on the contrary, voters were closely divided on the expansion idea when Roosevelt first proposed his legislation, even as the initiative faced largely negative press coverage from the New York Times, the dominant newspaper of the time.
More important: public support for Roosevelt’s expansion initiative only truly cratered when the court’s conservative majority suddenly halted its attempts to block the New Deal. In particular, the court’s surprising decisions to uphold a state minimum wage and then the pro-union Wagner Act deflated public support for court expansion, as did the subsequent retirement of one of the court’s most conservative justices. The court soon after declined to block social security.
“Evidence accumulated over the years goes against that notion of the (close) relationship between the public and the court,” wrote Caldeira. “I prefer, instead, a much more straightforward account: The Supreme Court outmaneuvered the president. Through a series of shrewd moves, the court put President Roosevelt in the position of arguing for a radical reform on the slimmest of justifications.”
But here’s the key point: he notes that the court’s “shrewd moves” that “outmaneuvered” FDR were in practice “an important jurisprudential retreat” on policy.
“President Roosevelt in essence offered the Supreme Court a choice between substantive policy and structural integrity,” he concludes. “The court wisely chose to give up on the substantive issues and preserve its structural integrity.”
Buried on the Social Security Administration’s website is an accurate summary of what really happened: “The debate on this [expansion] proposal was heated, widespread and over in six months. The president would be decisively rebuffed, his reputation in history tarnished for all time. But the court, it seemed, got the message and suddenly shifted its course . . . the court would sustain a series of New Deal legislation, producing a ‘constitutional revolution in the age of Roosevelt.’”
As Roosevelt himself put it after the fight was over: “We obtained 98 percent of all the objectives intended by the court plan.”
He was also overwhelmingly reelected to a historic third term a few years after the battle.
There Is No Other Viable Choice
For Democratic politicians, voters, media outlets, and advocacy groups, the moral of the story is not that reprising FDR’s court battle would repeat his failure. It is the opposite: doing what FDR did is probably the only chance to repeat his success in beating back an out-of-control court.
The good news is that at least a few party lawmakers are finally realizing that this isn’t a West Wing episode requiring a Jed Bartlet monologue — this is a high-stakes power struggle requiring some FDR-style tactics. Indeed, there is now Democratic legislation in Congress to add four justices to the panel. There is also legislation to impose term limits on Supreme Court justices — which is a wildly popular idea, according to survey data.
Even better: the justices are starting to worry about such pressure. In the past year, two of them delivered public speeches trying to defend the court’s legitimacy — a signal that they are concerned that public confidence in the court has hit historic lows. In fact, the entire Republican machine that packed the court full of right-wing extremists is now panicking about court expansion — which is a sign that it’s precisely what needs to happen.
That said, there is no guarantee that the six archconservatives now spearheading today’s judicial coup would react the same way as their predecessors during the New Deal. There may be nothing that prompts their retreat.
But in that case, public support for expansion could rise if Democrats cite the court’s extremism as yet more proof that expansion is necessary. This would require them to develop some intestinal fortitude and understand that public opinion is not static — it can be moved with enough rhetorical and legislative discipline.
Of course, some Democratic voters first and foremost love norms — and they are anesthetized by a corporate media that is forever pretending the court is dispassionate and its chief justice is a venerable statesman. So an FDR-esque crusade for court expansion might offend their sense of etiquette.
But ask yourself: What is the alternative here?
Emboldened by Democratic inaction after the antiabortion decision overturning Roe v. Wade, the six right-wing justices now seem well on their way to resurrecting the Lochner era — the inhumane judicial epoch that defined the period before Roosevelt’s battle with the court.
Roberts and his cronies clearly presume today’s Democrats will just continue defending the judicial institution — even as the court destroys every other institution in America, from the Environmental Protection Agency to the Consumer Financial Protection Bureau to the Securities and Exchange Commission to democracy itself. In short, they expect today’s Democrats to never do what Roosevelt did — which would doom the country to a dystopian future.