Should President Biden Take a Lesson from FDR about SCOTUS?

An entire series of outrages from the radical Republicans on the Supreme Court have ginned up calls for President Biden and Congress -- to “pack” or expand the size of the Court.

The Thom Hartmann Program via AI

The headline from last week’s Christian Science Monitor lays it out bluntly: “Majority of voters no longer trust Supreme Court.”

An entire series of outrages from the radical Republicans on the Court have ginned up calls for President Biden and Congress — should he be re-elected and Democrats take both the House and Senate — to “pack” or expand the size of the Court.

Outrages include Republicans on the Court overturning Roe v Wade, gutting affirmative action, spitting on the Voting Rights Act, limiting civil rights, and a growing anticipation that the Court will soon go after the rights of queer people while further restricting access to abortion and birth control medications.

How did we get here, and what can we do about it?

There’s a remarkable history here, from which we can learn important lessons and take inspiration, as I laid out in greater detail in The Hidden History of the Supreme Court and the Betrayal of America. It should guide President Biden now.

With the 1929 onset of the Republican Great Depression and the 1932 election of Franklin D. Roosevelt, the Supreme Court and the president were about to seriously clash for the first time in nearly a century.

Four of the justices, Pierce Butler, James Clark McReynolds, George Sutherland, and Willis Van Devanter, were collectively known as the Four Horsemen. As FDR had success after success in passing major legislative initiatives to rescue America from twenty years of Republican maladministration, the Four Horsemen were invariably joined by one of the other justices to strike down New Deal legislation that attempted to address unemployment and poverty, no matter how popular it was.

The Four Horseman claimed to be originalists (“strict constructionists” was the term of the day) who somehow could read the Founders’ intent from the Constitution; like the Republican justices on today’s Court, they flagrantly disregarded the historical reality that the Founders were almost never of a single mind.

Interpretations from that era’s justices didn’t even honestly reflect the Constitution’s framers’ 18th-century colonial understanding of the world; they reflected a 19th-century industrialist perspective, steeped in social Darwinism. They pushed for “survival of the fittest” economics along with pseudoscientific rationales for racism and sexism.

Ideologically, those four justices were the predecessors of conservative ideologues on today’s Supreme Court such as Thomas, Roberts, Gorsuch, Kavanaugh, Barrett, and Alito. Economically, they embraced laissez-faire economics and rejected any federal powers that were not explicitly granted by the US Constitution.

For 40 years during the prior Lochner era, the Court had struck down dozens of state laws protecting workers, including women and children. During the period between 1897 and 1929, the Court was ruling largely with the booming industrialist economy and saw the labor movement as disruptive rather than positive.

However, with the onset of the Great Depression, those industrialists lost the popular support they had enjoyed in the aftermath of the Haymarket bombing, but, like today, the  radically conservative Supreme Court had not caught up with popular opinion.

In 1935, the Court ruled that both FDR’s Agricultural Adjustment Act and the National Industrial Recovery Act were unconstitutional. The rulings gutted Roosevelt’s New Deal legislation.

The Agricultural Adjustment Act had passed in 1933 with 73 percent of the House of Representatives voting for it. The bill passed the Senate with 64 percent of the Senate voting for it. After it was struck down, William Leuchtenburg writes for Smithsonian magazine:

“Many farmers were incensed. On the night following [Justice Owen] Roberts’ opinion, a passerby in Ames, Iowa, discovered life-size effigies of the six majority opinion justices hanged by the side of a road.”

The National Industrial Recovery Act, with its famous “Blue Eagle” logo, had likewise passed with 80 percent of the House voting for it and 70 percent of senators voting for it.

When the Supreme Court used its power of judicial review to overturn these laws, it wasn’t viewed just as an assault on FDR’s New Deal; it was, in the opinion of many Americans (and FDR himself), an assault on the very basis of our democratic republic.

But they were federal laws, and supporters of the Court’s decisions argued that the laws in question were not in the realm of the federal government. If those laws were passed by states, supporters of the Court argued, the Supreme Court would allow them to stand as constitutional.

Then, shortly before Roosevelt was reelected in 1936, the Court struck down a New York state law that established a minimum wage for women and children in Morehead v. New York ex rel. Tipaldo. The pendulum of popular opinion swung against the Court almost overnight. One Republican newspaper in New York declared its opposition to the ruling:

“The law that would jail any laundryman for having an underfed horse should jail him for having an underfed girl employee.”

And, as historian David B. Woolner, author of The Last 100 Days: FDR at War and at Peace, noted:

“Over . . . 13 months, the court struck down more pieces of legislation than at any other time in U.S. history.”

In 1937, the National Labor Relations Act and the Social Security Act were on their way to the Court. Considering how the Four Horsemen had ruled during FDR’s first term, the president knew that he needed to do something quickly or risk losing both pieces of legislation.

If the Court overturned both acts, the New Deal would be dead and America might slide back into depression.

With the New Deal and America’s future as a democratic republic on the line, Roosevelt went on the attack. On February 5, 1937, just months after his landslide reelection, he announced his plan.

Roosevelt asked Congress for the authority to appoint one justice for each justice over 70 who would not retire. The justices on the Court could remain, but each would be called “justice emeritus” and collectively they would have only one single vote.

In 1937, the average life expectancy for men in the United States was only 58 years. The average age of the Supreme Court justices at the time was 71 years old, and six of the justices were 70 years or older. A book mocking the Court, called The Nine Old Men, “was rapidly moving up the bestseller lists.”

Roosevelt’s plan took advantage of the widespread public opinion that the age of the justices was negatively affecting the Court’s decision-making along with the Court’s ability to quickly rule on cases.

FDR directly called into question the “capacity of the judges themselves” to dispose of the growing number of cases facing federal courts. The United States’ population had nearly doubled between 1900 and 1936, and the number of cases facing federal court dockets had exploded. Citizens were waiting longer and longer to go in front of older and older judges.

Roosevelt’s plan would have immediately given him six appointments to the Supreme Court and up to 44 appointments for federal lower courts. Roosevelt argued that “a constant and systematic addition of younger blood will vitalize the courts.”

On March 9, 1937, Roosevelt told the nation in a radio address that the Court was ruling not just against himself and Congress, but against the will of the American people, themselves.

“Last Thursday I described the American form of Government as a three horse team provided by the Constitution to the American people so that their field might be plowed. The three horses are, of course, the three branches of government—the Congress, the Executive, and the Courts.

“Two of the horses are pulling in unison today; the third is not. Those who have intimated that the President of the United States is trying to drive that team, overlook the simple fact that the President, as Chief Executive, is himself one of the three horses.

“It is the American people themselves who are in the driver’s seat. It is the American people themselves who want the furrow plowed.

“It is the American people themselves who expect the third horse to pull in unison with the other two.”

 “The Courts,” Roosevelt boomed, “have cast doubts on the ability of the elected Congress to protect us against catastrophe by meeting squarely our modern social and economic conditions.”

Roosevelt’s critics were aghast at his plans. They claimed he was trying the “pack the Court” with justices who would simply be his yes men.

Reacting to his critics, Roosevelt cut to the heart of the matter:

“[I]f by that phrase the charge is made . . . that I will appoint Justices who will not undertake to override the judgment of the Congress on legislative policy, that I will appoint Justices who will act as Justices and not as legislators—if the appointment of such Justices can be called ‘packing the Courts,’ then I say that I and with me the vast majority of the American people favor doing just that thing—now.”

Congress never voted on the plan; it’s unclear whether it would have succeeded, or if a more moderate plan that would have given him only two or three justices might have worked.

On March 29, 1937, a Washington state minimum wage law came before the Supreme Court in West Coast Hotel Co. v. Parrish. The law in question was nearly identical to the New York state law that that had come before the Court and been struck down a year earlier. But this time, Justice Owen Roberts abandoned the Four Horsemen to uphold Washington state’s minimum wage law in a 5-4 decision.

In a series of 5-4 decisions two weeks later, the court upheld the National Labor Relations Act as constitutional. The ruling, reflecting the success of FDR’s pressure campaign, was astonishing.

Labor Secretary Frances Perkins was close friends with Justice Roberts’s wife, Elizabeth. When the decisions came down, according to Perkins’s biographer Kirstin Downey, “she rushed that afternoon to Roberts’ home” and “threw her arms around the man and hugged him.”

“Owen, I’m so proud of you,” Perkins told the Supreme Court justice. “A man of your standing and intelligence who is not afraid to change his mind!”

Downey writes on how Roberts was embarrassed by the affection, but also very pleased. “Really, do you think so?” he replied to Perkins, preening.

Less than two months later, the Court declared that Social Security was constitutional.

The New Deal had been saved from execution by the Supreme Court. Social Security had been salvaged and the National Labor Relations Act gave labor and unions a lifeline after 40 years of fighting to stay afloat.

Shortly after the Supreme Court upheld Social Security, Willis Van Devanter, one of the Four Horsemen, retired from his position after 26 years on the bench. This gave Roosevelt his first Supreme Court pick: Hugo Black. Less than a year later, Roosevelt got his second pick when Justice George Sutherland announced that he was retiring.

By the end of his 12-year presidency, Roosevelt ended up appointing nine new members to fill eight of the nine seats on the Supreme Court (one, Byrnes, only served a year and a half and was then replaced by another FDR appointee).

Roberts’s about-face in West Coast Hotel was referred to at the time as “the switch in time that saved nine.”

But despite the catchy phrase to describe Roberts’s switch, the relationship between Roberts’s vote and Roosevelt’s plan is not clear. Historians still argue over why Roberts switched and whether he was already planning to switch his vote on these cases before Roosevelt introduced his plan to pack the Court.

They also argue over why the Democratic-controlled Senate buried Roosevelt’s court-packing bill in July 1937. At the beginning of that year the American people were overwhelmingly supportive of Roosevelt, Congress, and the New Deal. At the same time, the American people showed nothing but contempt toward the Supreme Court for “legislating from the bench.”

There’s already legislation before Congress to expand the Court, and a growing consensus among Americans that it’s time for just that. President Biden should take a lesson from FDR, although he’s probably wise to wait until after the election so as not to stir up too much Republican outrage.

Eventually, however, America is going to have to undo the damage of the rightwing billionaires who’ve paid to fill today’s court with radical ideologues.