President Joe Biden is cultivating a peculiar style of executive leadership that bears a stark resemblance to America’s Depression-era president, Franklin D. Roosevelt.
Of the many similarities between the two, none strike a greater historical continuity than their respective proposals aimed at changing the structure of the U.S. Supreme Court.
For Biden, however, rekindling one of Roosevelt’s most ambitious policy proposals does not appear to be a strategic political move. Among Democratic and Republican lawmakers alike, court-packing legislation polls unpopular and imprudent, especially with midterm elections already on the horizon.
Gauging support for court packing, or lack thereof, the White House in April established a Presidential Commission on the Supreme Court of the United States.
Composed of 36 constitutional lawyers, former judges and political scientists, the commission is tasked with identifying “the principle arguments in the contemporary public debate for and against Supreme Court reform, including an appraisal of the merits and legality of particular reform proposals.”
“The topics it will examine include the genesis of the reform debate; the Court’s role in the Constitutional system; the length of service and turnover of justices on the Court; the membership and size of the Court; and the Court’s case selection, rules, and practices.”
The executive commission can be expected to stir rancor amongst beltway partisans. When compared to Roosevelt’s court-packing proposal, however, Biden’s plan is relatively mindful of the underlying structures of the American government: separation of powers.
On paper, at this early stage, Biden’s plan will only inquire as to how the Supreme Court functions as an institution.
However, the president’s motivation for creating the commission legitimized certain partisan frustration with the court’s ideological structure. As history has unfolded, it has usually been unwise to pursue major structural reforms on the basis of simple frustration, as one’s frustration may arise from selfish motives.
A Frustrated President
As the late former Chief Justice William H. Rehnquist wrote in his book, “The Supreme Court: How It Was, How It Is,” frustration was the driving force behind Roosevelt’s initial proposal to pack the court.
Similar to activists today, Roosevelt was frustrated with how certain members of the court interpreted the Constitution, leading him to pursue a more radical approach that would remodel the image of the judiciary.
Under the dubious term “reorganization,” Roosevelt suggested the president ought to possess constitutional authority to nominate a new justice to the U.S. Supreme Court for each member who was over the age of 70 and failed to retire — increasing the total number of justices from nine to 15.
At that time, six of the court’s nine justices were over 70.
Under Roosevelt’s plan, if the six justices failed to retire upon the proposal’s enactment, the president would be empowered to nominate an additional six justices to the court, giving him authority to reshape the majority with the stroke of a pen.
Roosevelt based his argument on the claim that the older members of the high court were unable to satisfy the requirements of the position and could no longer execute a full share of the workload.
In hindsight, it’s fair to say Roosevelt was impatient. His political passions led him to pursue an ad hoc policy that ultimately acquired little support in Congress.
But the most significant blow to Roosevelt’s court-packing platform did not come from within the halls of the national legislature.
Instead, the critical body blow flowed from the pen of then-Chief Justice Charles Evans Hughes.
The High Court’s Response
Along with Justice Owen Roberts, Hughes was jurisprudentially among the court’s “swing men,” who demarcated the institution’s two ideological wings.
On one side stood the court’s “four horsemen”: Justices Willis Van Devanter, James C. McReynolds, George C. Sutherland, and Pierce Butler. Their legal philosophies stood most at odds with Roosevelt’s New Deal proposals.
On the other side, Justices Louis D. Brandeis, Harlan F. Stone and Benjamin Cardozo were recognized as the court’s “liberal” justices.
As debate over the president’s bill unfolded in the Senate 1937, a group of bipartisan lawmakers who shared similar convictions against the court-packing scheme ventured to obtain factual testimony from members on the court.
The chief justice, unwilling to testify by himself, asked Brandeis — a staunch Democrat and liberal — to accompany him. The associate justice advised Hughes that it would be improper for him, or any other member of the court, to testify in person.
Brandeis noted, however, it would be acceptable for the chief justice to pen a letter to the committee detailing the facts of the matter if they were requested.
After the letter was approved and signed by Brandeis and Van Devanter, Hughes delivered the letter to Democratic Sen. Burton K. Wheeler of Montana — who led the opposition testimony against the bill before the Judiciary Committee.
The morning he testified, Wheeler announced he had gone “to the only source in this country that could know exactly what the facts were.”
The senator paused, as onlookers waited in anticipation, then said, “And I have here now a letter by the Chief Justice of the Supreme Court, Mr. Charles Evans Hughes … written by him and approved by Mr. Justice Brandeis and Mr. Justice Van Devanter. Let us see what these gentlemen say about it.”
Reading the letter aloud, Wheeler said, “The Supreme Court is fully abreast of its work. When we rose on March 15 we had heard argument[s] in cases in which certiorari had been granted only four weeks before … there is no congestion of cases upon our calendar.”
“This gratifying condition has obtained for several years. We have been able for several Terms to adjourn after disposing of all cases which are ready to be heard.”
“An increase in the number of Justices of the Supreme Court, apart from any question of policy, which I do not discuss, would not promote the efficiency of the Court,” Hughes’ letter continued.
“There would be more judges to hear, more judges to confer, more judges to discuss, more judges to be convinced and to decide. The present number of Justices is thought to be large enough so far as the prompt, adequate, and efficient conduct of the work of the court is concerned.”
According to Justice Robert Jackson, the chief justice’s letter proved the most significant factor in defeating the court reformation plan, as it directly undermined Roosevelt’s original contention that the court was incapable of discharging its fundamental duties.
In subsequent weeks, however, the court upheld the constitutionality of a Washington state minimum wage law and the Wagner Act, both of which were decided by votes of 5-4. Chief Justice Hughes penned the court’s opinion.
From the vantage point of today, Americans can view the process that guides the nation’s separate branches of government ebb and flow, continuing to shape and develop as new challenges arise.
A civics course may inform individuals that each branch enumerates a unique set of constitutional powers, which shape the way popular government functions in a republican society.
But as Roosevelt’s brazen attempt to remold the image of court failed in practice, he succeeded in the end. What does this tell us?
When enough pressure is applied to an equal branch of government, it may not crack — but it can fold.
This article appeared originally on The Western Journal.