If you can’t win, change the rules! That was President Franklin Delano Roosevelt’s (D) 1937 approach to a U.S. Supreme Court, a court that was declaring many of his programs unconstitutional. The idea is now being brought back by Democrats.
FDR saw the Great Depression as an opportunity to fundamentally transform America. Many aspects of his New Deal programs were enacted into law, but others that went too far were struck down by the Supreme Court, typically on grounds that they went beyond the powers granted to Congress to regulate interstate commerce, or that they delegated legislative powers to administrative agencies or private bodies.
Roosevelt found this highly frustrating, and after a big win for Democrats in the 1936 elections, he acted. On the thin excuse that many of the Court justices were too old to keep up with their work, he offered a proposal to allow the president to appoint an additional justice for each justice over 70. This would have left the Court with 15 justices and—of course—a solid liberal majority.
It didn’t exactly work. But though the bill didn’t pass, it may have had its desired effect: By an odd coincidence, the Court suddenly started upholding Roosevelt’s bills, in some cases overruling decisions only a year old. This was dubbed “the switch in time that saved nine.”
Now, with President Joe Biden (D) in control of the White House, and with his party in narrow control of the U.S. House of Representatives and the U.S. Senate, there’s talk again of court-packing to remove the current conservative majority on the Court and to open up the way for Biden’s proposals, such as on gun control, without danger of the Court striking them down.
Last April, President Biden announced a Presidential Commission on the Supreme Court. This commission is a ruse to make it sound like this is just a formality, but if you look into the details, you find that a White House press release says, “The Commission’s purpose is to provide an analysis of the principal 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 usual crowd is joining in to help Biden sell the idea of transforming the Court. Writing in Bloomberg Law, two law professors argued that we need to expand the Court to 15 justices so that it will become more productive—exactly the argument that Roosevelt used.
“Last year,” they wrote, “the Supreme Court decided 73 cases. In the 1980s, the court heard more than twice that, 160 cases per term on average. The U.S. is renowned for its litigious culture, surely there cannot be less than 100 cases worthy of review each term by the apex court of the judiciary. In fact, there were almost 300,000 federal civil cases filed in the U.S. in the 12-month period ending Sept. 30, 2020, and over 90,000 federal criminal cases in the 12-month period ending March 31, 2019. The Supreme Court is the final court of appeal for all these suits and for constitutional issues arising in the millions of civil and criminal cases in the state court systems. It simply does not review enough cases to fulfill its oversight function.”
Well, they have a point about the Court’s reduced caseload. But it doesn’t follow that the Court needs to be bigger; after all, the Court was hearing more than twice as many cases, with the same number of justices, just a few decades ago. The reason isn’t that the justices are overworked; it’s that they’re, perhaps, more cautious.
And the column gives the game away by saying, “There are good reasons to want to pack the court: the conservative court, led by Chief Justice John Roberts, has been laying the groundwork to undermine desperately needed electoral reform, endangering the democratic foundations of the nation.”
Though the U.S. Constitution doesn’t set a number for the Supreme Court’s membership, it has remained constant at nine justices for over 150 years because people recognized that fiddling with the Court’s membership for political purposes undermines both the rule of law and the Court’s legitimacy.
The public understands this, even if some politicians and law professors don’t. This was true in FDR’s time, where his initiative, though intimidating to the Court, was highly unpopular. And it’s true today, where an April Morning Consult poll showed opposition to court-packing at nearly 2-1 and growing. The courts aren’t supposed to be another political branch. If they are to be one, then they should be elected.
And, of course, if court-packing gets started, where do we stop? If a Democrat majority in Congress can raise the Court’s size to 15 justices, why can’t a future Republican majority raise it to 25? And so on and so on until the Supreme Court has more justices than Disney had Dalmatians.
The Constitution doesn’t impose a limit on the size of the Court because the Framers thought Congress and presidents would be sensible. It seems they didn’t anticipate just how much of a political football the Court would become.
President Biden, as well as House Majority Leader Nancy Pelosi (D-Calif.), Senate Majority Leader Chuck Schumer (D-N.Y.), and other anti-Second Amendment politicians want to either pack the Court or to bully the Court, as FDR did, into ruling that its unconstitutional laws are constitutional. Biden’s stated desire to infringe upon, if not to outright disregard, the Second Amendment would clearly be much easier if he didn’t have to worry about the Court striking down his party’s unconstitutional gun-control schemes.
The high court’s D.C. v. Heller (2008) decision, after all, was 5-4. Anyone who reads the liberal minority opinion in that case, and in the subsequent McDonald v. Chicago (2010), will plainly see that the Left-leaning justices would very much like a chance to rule that the Second Amendment doesn’t mean what it says. They’d like to kill this individual right and thereby open the constitutional gates for a flood of new gun-control laws at the state and federal level.
Glenn Harlan Reynolds is the Beauchamp Brogan Distinguished Professor of Law at the University of Tennessee College of Law, and is known for his political blog Instapundit.