Wednesday, March 14, 2012

Franklin Roosevelt's Forgotten War with The Supreme Court

by Nomad
As the Supreme Court deliberates the constitutionality of President Obama's health care plan, it might come as a surprise to a lot of people that this isn't the first time a progressive president has come up against a conservative Supreme Court. Franklin Roosevelt encountered similar problems when he attempted to implement his own economic reforms.

Of the Court's overreach, the president in his ninth fireside chat told the American people, "To the far-sighted, it is far-reaching in its possibilities of injury to America."

Battle Between the Branches

This event of our day and age would not be the first time the Supreme Court has been accused of activism and overstepping its prescribed powers. And this isn't the first time a crisis has developed between the Judicial and the Executive branches of the United States Government.
On March 9, 1937, Franklin Roosevelt, speaking by radio to the nation described the problem of an obstructionist Supreme Court, and the need for a drastic re-evaluation of the process. 
Roosevelt stated the problem very directly "The Court" he claimed,"has been acting not as a judicial body, but as a policy-making body." He went on to cite, with quotes of dissenting opinions from other High Court judges, instances after instance in which the Court went beyond its duty.
I want - as all Americans want - an independent judiciary as proposed by the framers of the Constitution. That means a Supreme Court that will enforce the Constitution as written, that will refuse to amend the Constitution by the arbitrary exercise of judicial power - in other words by judicial say-so. It does not mean a judiciary so independent that it can deny the existence of facts which are universally recognized.
His proposal was that "hereafter when a Judge reaches the age of seventy, a new and younger Judge shall be added to the Court automatically."

The words of the speech might well have been written yesterday.
If we learned anything from the depression we will not allow ourselves to run around in new circles of futile discussion and debate, always postponing the day of decision. The American people have learned from the depression. For in the last three national elections an overwhelming majority of them voted a mandate that the Congress and the President begin the task of providing that protection - not after long years of debate, but now. The Courts, however, have cast doubts on the ability of the elected Congress to protect us against catastrophe by meeting squarely our modern social and economic conditions.
He described the government in terms the average farmer or laborer could well visualize.
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.

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. We must find a way to take an appeal from the Supreme Court to the Constitution itself. 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.
Roosevelt was fully prepared to answer the charge of "Court-packing"
Let me answer this question with a bluntness that will end all honest misunderstanding of my purposes.
If by that phrase "packing the Court" it is charged that I wish to place on the bench spineless puppets who would disregard the law and would decide specific cases as I wished them to be decided, I make this answer: that no President fit for his office would appoint, and no Senate of honorable men fit for their office would confirm, that kind of appointees to the Supreme Court.

But if by that phrase the charge is made that I would appoint and the Senate would confirm Justices worthy to sit beside present members of the Court who understand those modern conditions, 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.
Strong words indeed. In any case, this kind of "court-stacking" has become a common practice in modern American politics and is usually checked- at least, in some degree- by the nomination process.

On the potential accusation that the proposal was radical or unprecedented, he assured the people.
Is it a dangerous precedent for the Congress to change the number of the Justices? The Congress has always had, and will have, that power. The number of justices has been changed several times before, in the Administration of John Adams and Thomas Jefferson - both signers of the Declaration of Independence - Andrew Jackson, Abraham Lincoln and Ulysses S. Grant.

Modern Revision

Interestingly, Wikipedia's entry on Roosevelt's proposal reads:
..his plan, usually called the "Court-packing Plan", failed in Congress and proved a political disaster for Roosevelt.
And yet, upon further investigation, the text cited in this Wikipedia is not as clear cut. Calling the proposal "a political disaster" is misleading and an opinion of the contributor, not supported by the citation itself.
Only weeks into his second term, President Franklin D. Roosevelt took on the U.S. Supreme Court--which had invalidated a series of New Deal programs--by offering a plan to ease the load of the “aged, overworked justices,” whom critics derided as the “nine old men.”
The plan would have allowed the president to nominate an additional justice whenever one over age 70 did not resign, until the court had 15 members. And it just so happened that six of the nine justices were already over 70.
The proposal was roundly denounced, going down to defeat in Congress. But soon the court began upholding New Deal programs, muting calls for its radical restructuring. Seven justices left the bench over the next four and a half years, allowing Roosevelt to remake the court through traditional means.
The proposal was, indeed, soundly defeated in Congress and yet, before the end of the same year, before the end of his second term as president, Roosevelt had accomplished what he had desired. His threat to reform the court, specifically the retirement age seems to have had the desired effects.

For whatever reasons, the radical restructuring of the court system proved unnecessary. By the end of 1937, with the retirement of Willis Van Devanter and the confirmation of Hugo Black, the balance of the court had changed. This trend continued and by the end of 1941, Roosevelt had appointed seven Supreme Court justices. Therefore calling the proposal "a political disaster" is misleading and an opinion of the contributor and not supported by the citation itself. 
Again Wikipedia's entry on the bill calling for the reform is slightly misleading and, at least, conjectural.
Ultimately, Roosevelt's proposed legislation failed when the U.S. Senate voted 70–20 to recommit the bill to the Senate Judiciary Committee following the sudden death of Senate Majority Leader Joseph T. Robinson, whose efforts would have been essential to the bill's passage. In recommitting the bill, the Senate explicitly instructed the Judiciary Committee to strip the bill of its court-packing provisions. The entire episode garnered several negative consequences for Roosevelt that lasted through the rest of his administration, leading many scholars to conclude the President's victory was a Pyrrhic one.
In this passage, "many scholars" are cited but only one is actually given. (William Leuchtenburg, professor emeritus of history at the University of North Carolina at Chapel Hill and the leading scholar of the life of Franklin Delano Roosevelt) The "negative consequences are also unlisted and calling the president's victory a "Pyrrhic"- a win that causes additional problems- is debatable.

Franklin Roosevelt's goal was achieved. By eliminating the obstructionist court, Roosevelt's plan for the rebuilding of the economy and the re-establishment of a court based solely on constitutional interpretation can hardly be deemed "Pyrrhic." (The citation, itself, is inconclusive and somewhat unconnected to the text shown, referring only to the problem of labeling judges by political views.)

Bottom line: FDR's call for judicial reform was never enacted. Circumstances- like the death of one of its key supporters prevented that. In the end, with the retirement of one of the conservative judges in the same year, there was very little taste for the political battle that undoubtedly would have ensued. Therefore, the opportunity for the reform of the term limit for Supreme Court justices was lost. 

Beyond the Age of Competence

In its most controversial decision (so far) of Citizens United, many felt that the Supreme Court judges misused- or at least, stretched beyond the limits of credibility the intention of the Constitution and went beyond their Constitutional powers in doing so. 

In the minority dissenting opinion, other Supreme court judges agreed, "The court, on its own volition, decided to render a sweeping decision, although nothing required it to do so."

Be that as it may, what exactly is wrong with prescribing a retirement age for Supreme Court Judges? Why, except for the fact that it has not been considered seriously, is it so unusual? In what other professions would a person be allowed to work, unsupervised and unquestioned, beyond all age of competence? 

The knee-jerk reaction would be the charge of ageism. However, discrimination based on age- as Justice Scalia recently said regarding gender discrimination, is not specifically prohibited by the Constitution. 

Recently Justice Scalia mentioned that he had not bothered to read the entire health care bill that he is now called upon to review. Should we not take that as a warning sign that Scalia may not be capable of fulfilling the essential and serious duties of his position? 

Larry Sabato, Professor of Politics at the University of Virginia, director of their Center for Politics, and a political analyst wrote:
"The insularity of lifetime tenure, combined with the appointments of relatively young attorneys who give long service on the bench, produces senior judges representing the views of past generations better than views of the current day."
Ironic, isn't it? It is precisely the views of the past, that of Roosevelt, in this case, which can ultimately provide insight into the problems we face today.

If Roosevelt's proposal were to be enacted today, what would the bench look like? Ruth Bader Ginsburg is 79. Antonin Scalia and Anthony Kennedy are 76. Stephen Breyer is 74. In this case, four new justices would be added, bringing the total- until any of the present judges retire- to thirteen. 

While the superstitious might cringe at that number, it does have the benefit of coming to a conclusive vote. Still, these reforms are never going to happen. Unless, of course, there is a Democratic majority in both Houses of Congress after the next election.


Thanks for all the comments. It's always great to hear what you think too.