Last week, Justice John Paul Stevens, long the anchor of the Supreme Court’s left wing, announced that he is retiring this summer, at the end of the Court’s current term. This news (not a surprise, as Stevens’ 90th birthday is next week) came just weeks into a flood of state lawsuits filed against the federal government in response to the enactment of health care reform. Congress promises to slug out its ideological splits over Stevens’ replacement, while courts take on the states’ claims that the federal government has overstepped its authority by mandating health coverage. In the upcoming confirmation battle and in the health-care-coverage litigation, we’ll see tested a truth universally acknowledged in certain liberal circles: a strong, central government with a generous wallet protects its citizens from oppression by irrational leaders (angry spouses; dottering selectmen; corrupt county judges). This principle lies at the heart of a familiar battle over the meaning of American liberty: should Washington get off our lawns and let each state mind its own business (and make its own laws); or do only Federal regulations and programs offer necessary checks against municipalities, preachers, and states that would otherwise up and go rogue?
Roosevelt delighted in “the artfulness, the deviousness, of making the case against the Court one of infirmity rather than ideology.”
Former Clinton speechwriter Jeff Shesol frames this tension not in a dense treatise on the theory of liberalism (due respect to Rawls and Walzer) but in a truly entertaining new account of President Franklin D. Roosevelt’s failed attempt to pack the Supreme Court with Justices who shared his New Deal vision. Shesol is not a lawyer but a writer and historian, and he’s superb at what he does. There’s a zealotry-of-the-converted tone to his descriptions of Commerce Clause jurisprudence—this guy is spreading the word (Have you heard the Good News today?).
After FDR’s 1936 landslide reelection, he’d had it with a Supreme Court, led by moderate Charles Evans Hughes, that repeatedly struck down his New Deal legislation. Emboldened by his victory, and frustrated by what he saw as unnecessary roadblocks to programs meant to lift the country out of the Great Depression, the president proposed extensive judicial reform legislation in February 1937. The signature component of the bill would have enabled FDR to add up to six additional Justices to the nine-member Supreme Court. FDR—who had not made a single Court appointment during his first term—could have used this expanded flexibility to “pack” the Court with Justices likely to support his legislative agenda.
History has written the story of the ensuing fight, and Senate defeat, as what the kids would call an “Epic Fail” (the lower-court reforms that did get through get lost in the telling). FDR’s subsequent attempt, known as the “Party Purge,” to rid the House of Democrats he considered obstacles to the New Deal: Fail Part 2. The Democrats lost 77 Congressional seats (71 of them in the House) in the 1938 midterms, and a new conservative coalition emerged in Congress, signaling the end of the New Deal’s momentum.
FDR made his case for judicial reform through lobbying and direct-to-voters speeches, including one of his famous fireside chats, pushing the idea that Hughes and his Court were a bunch of ineffectual oldsters. Roosevelt delighted in “the artfulness, the deviousness, of making the case against the Court one of infirmity rather than ideology,” Shesol writes. The public found Roosevelt’s jockeying distasteful and even indicative of dictatorial leanings. Shesol acknowledges that FDR here is seen as a “character in a Greek tragedy…blinded by arrogance after his landslide” but argues against hubris as FDR’s prime motivator: “It may have been driven…by ego and emotion, but it was also the product of reason.”
The struggles over New Deal programs were a chapter in a perennial political battle over the power the federal government has over individual states’ autonomy. This plays out in the Supreme Court perhaps most obviously in the jurisprudential deathmatches over the Tenth Amendment, the Commerce Clause, and the Necessary and Proper Clause (which, not surprisingly, allows Congress to make laws “necessary and proper” to keep the government on Constitutional track). States-rightsers hang their hats (and coats, and kitchen sinks) in large part on the Tenth Amendment, which says that powers not granted to the federal government in the Constitution are left to the discretion of the states. And state attorneys general argue (among other things) that the Patient Protection and Affordable Care Act’s requirements are not within the powers granted the federal government by the Commerce Clause (which enumerates the government’s power to regulate interstate commerce).
FDR’s passion for the Constitution “not because it is old, but because it is ever new,” represents one side of another persistent tension in Constitutional philosophy and application. Legal realists tend to believe, as Roosevelt did, that the Constitution was a living document “designed to empower and not frustrate the federal government,” and that as society changes, so must Constitutional interpretation adapt. Originalists (these days, Justice Antonin Scalia is the best-known and loudest-mouthed), on the other end of the spectrum, cloak their ideologies under the pretext that the Constitution has a fixed meaning, and that it must always be interpreted strictly as written. Judicial appointments, then, necessarily incorporate a mix of political leanings, Constitutional philosophy, and policy positions. FDR can’t be blamed for wanting a few more bites at the appointment apple. Despite the relatively young and reactionary Roberts Court, Obama will make at least one more Court appointment (to replace Justice Stevens).
The parallels between Obama today and FDR in 1938 are in the zillions. The mutual enmity between Obama and Chief Justice Roberts finds precedent in FDR’s animosity toward Chief Justice Hughes. As we round the bend on the midterm election track, Obama fan-kids tapping their feet impatiently, everyone’s wondering if 2010 will be a referendum on the god of peace (Nobel Peace Prize? Really?), hope, and change. Apologists in the health-care fight cited—as FDR’s administration did in 1938—the obstacles of a split Supreme Court and an ornery Congress run by the Democrats. But both presidents staked the party’s midterm fates on idea that an expensive central policy overhaul is necessary during economic crisis.
Obama’s victory in the health-care reform fight isn’t something to take lightly, but it’s also a mistake to assume the law will withstand constitutional challenges if the state litigation makes it to the Supreme Court. It’s hard not to wonder whether Obama’s rock-and-hard-place position in the creation of the final health care law was a product of forces similar to those at work in the court-packing effort: mistrust of the Supreme Court, economic desperation, a touch of hubris; but for now, he pulled it off. And if his nominee to the Court survives the summer’s confirmation fight—get your popcorn ready—maybe the Court’s center will tack ever so subtly left again. With reform enacted, and nominee in the wings, Democrats can be hopeful that we might not be heading into a reprise of the 1938 electoral slaughter.
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Casey Greenfield, a graduate of Yale Law School, is a lawyer and writer in New York.