The names change – but the same challenges remain.
A president arrives in office during a time of great tumult and uncertainty, pledging to use the power of the government to solve problems the Founders intended the free market to manage and navigate.
Nevertheless, as promised, with resolve and even congressional cooperation, the chief executive muscles through the proposed legislation.
One problem: A conservative Supreme Court majority balks, blocking many of the major policies and declaring them unconstitutional.
The president’s response?
“We have, therefore, reached the point as a nation where we must take action to save the Constitution from the Court and the Court from itself,” the president tells the nation. “We want a Supreme Court which will do justice under the Constitution and not over it. In our courts we want a government of laws and not of men.”
President Franklin Roosevelt uttered those words from the White House on March 9, 1937 – his first “Fireside Chat” since beginning his second term. Unshackled from reelection worries, FDR ignited a controversy that would continue for months.
In short, President Roosevelt was frustrated by the number of conservative justices on the High Court. Knowing he couldn’t fire them from lifetime appointments, he proposed to do the next best thing: dilute their authority and vote by “packing the court” with more justices.
The proposal’s name was the “Judicial Procedures Reform Act.”
Sound familiar?
FDR explained his rationale:
What is my proposal? It is simply this: whenever a Judge or Justice of any Federal Court has reached the age of seventy and does not avail himself of the opportunity to retire on a pension, a new member shall be appointed by the President then in office, with the approval, as required by the Constitution, of the Senate of the United States.
That plan has two chief purposes. By bringing into the judicial system a steady and continuing stream of new and younger blood, I hope, first, to make the administration of all Federal justice speedier and, therefore, less costly; secondly, to bring to the decision of social and economic problems younger men who have had personal experience and contact with modern facts and circumstances under which average men have to live and work. This plan will save our national Constitution from hardening of the judicial arteries.
Only those weren’t his reasons at all. In truth, FDR was desperate to continue rolling out his “New Deal” proposals – many of which taxpayers today are still paying for. The nine-member Court assured the president they were well capable of handling the caseload in an efficient matter. And the president wasn’t looking to “save” the Constitution – he was trying to expand and reshape it to accommodate his own plans to enlarge the government’s role.
In the end, FDR’s scheme was rejected, and the American people saw it for what it was – a gross overreach of executive power. The Senate Judiciary Committee wrote:
The bill is an invasion of judicial power such as has never before been attempted in this country. It is essential to the continuance of our constitutional democracy that the judiciary be completely independent of both the executive and legislative branches of the government.
It is a measure which should be so emphatically rejected that its parallel will never again be presented to the free representatives of the free people of America.
We know efforts are underway in liberal circles to likewise “reform” the High Court – but how and to what degree remains to be seen. If history is any guide, though, we know the word “reform” is just another way of calling for fewer conservative justices and more liberal ones. Let’s hope and pray that when it comes to such a campaign’s conclusion, that history will once more repeat itself.
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