{"id":737993,"date":"2022-07-09T14:41:15","date_gmt":"2022-07-09T14:41:15","guid":{"rendered":"https:\/\/jacobin.com\/2022\/07\/fdr-was-right-to-attack-the-supreme-courts-power-democrats-should-do-the-same-today\/"},"modified":"2022-07-09T14:41:15","modified_gmt":"2022-07-09T14:41:15","slug":"fdr-was-right-to-attack-the-supreme-courts-power-democrats-should-do-the-same-today","status":"publish","type":"post","link":"https:\/\/radiofree.asia\/2022\/07\/09\/fdr-was-right-to-attack-the-supreme-courts-power-democrats-should-do-the-same-today\/","title":{"rendered":"FDR Was Right to Attack the Supreme Court\u2019s Power. Democrats Should Do the Same Today."},"content":{"rendered":"\n \n\n\n\n

When the Supreme Court\u2019s right-wing justices tried to block Franklin Roosevelt's New Deal programs, he took the court head-on \u2014 and won. There's a lesson there today: directly attacking the court's power is the only way to rein it in.<\/h3>\n\n\n
\n \n
\n Franklin Roosevelt signs Social Security Act into law, August 14, 1935. (Wikimedia Commons)\n <\/figcaption> \n<\/figure>\n\n\n\n\n \n

As six unelected extremists orchestrate a\u00a0judicial coup<\/a> to repeal the twentieth century, you might be wondering: Why won\u2019t Democrats simply push to expand the court like it\u2019s been expanded before<\/a>?<\/p>\n

Why is President Joe Biden\u00a0opposing<\/a>\u00a0court expansion and why is House Speaker Nancy Pelosi\u00a0refusing<\/a>\u00a0to allow a vote on the idea?<\/p>\n

Why is the Democratic Party defending a GOP-packed,\u00a0corporate star chamber<\/a>\u00a0that polls show\u00a0most Americans no longer trust<\/a>?<\/p>\n

One answer is\u00a0political malpractice<\/a>. Another answer: complicity. Party leaders may be sending out fundraising emails slamming the John Roberts Court, but they have eschewed court expansion, halted<\/a>\u00a0the once-common practice of legislatively overriding justices, and\u00a0declined<\/a> to quickly fill lower-court vacancies before a midterm election that could eliminate their Senate majority.<\/p>\n

But incompetence and corruption are not the whole story. Democrats have almost certainly also internalized the tale told about the party\u2019s greatest president \u2014 the one\u00a0alleging<\/a>\u00a0that Franklin Roosevelt\u00a0epically<\/a>\u00a0failed<\/a>\u00a0by challenging the Supreme Court\u2019s power in the late 1930s. In the popular telling, FDR got greedy, tried to pack the court with his ideological allies, but a court-loving public saw it as a crass power grab and unacceptable violation of norms, dooming the initiative and preserving equilibrium. Cue inspiring\u00a0West Wing<\/em>\u00a0music as the republic was saved.<\/p>\n

This cartoon has become the key cautionary tale designed to deter any challenge to a court that has been one of the establishment\u2019s last lines of defense. But here\u2019s the inconvenient fact: the story is bullshit \u2014 or at least significantly more complicated than the fable.<\/p>\n

In truth, Roosevelt did not succeed in packing the court \u2014 but his court expansion initiative did succeed in taming the court, which is exactly what Democrats must do right now.<\/p>\n\n \n\n \n \n \n

\u201cA Choice Between Substantive Policy and Structural Integrity\u201d<\/h2>\n \n

As recounted in\u00a0Supreme Power<\/em><\/a>,\u00a0<\/em>Roosevelt in 1932\u00a0ignited<\/a> a firestorm when he dared to utter a taboo truth during a Baltimore speech at the end of that year\u2019s presidential campaign. He declared that Americans were being crushed by government policies spearheaded by \u201cthe Republican Party [which] was in complete control of all branches of the federal government \u2014 the Executive, the Senate, the House of Representatives and, I might add for good measure, the Supreme Court as well.\u201d<\/p>\n

\u201cRoosevelt Says GOP Has Had Supreme Court Control Since 1929,\u201d\u00a0blared<\/a>\u00a0the front page of the\u00a0Washington Post<\/em>, in an article scandalizing the idea that the court had become a political weapon.<\/p>\n

In the ensuing years, the court\u2019s conservative block tried to block and dismantle the New Deal program Roosevelt was elected to pursue. In 1935 and 1936, the court\u2019s five conservative justices went on a rampage.<\/p>\n

Smithsonian Magazine<\/em>\u00a0wrote<\/a>\u00a0that the Supreme Court in that time \u201cstruck down more significant acts of Congress \u2014 including the two foundation stones, the [National Recovery Act] and the [Agricultural Adjustment Act], of Roosevelt\u2019s program \u2014 than at any other time in the nation\u2019s history, before or since.\u201d The magazine noted that one decision \u201cdestroyed FDR\u2019s plan for industrial recovery\u201d and another \u201cannihilated his farm program.\u201d<\/p>\n

Soon after he was reelected in 1936, Roosevelt decided that a direct confrontation with the court was the only way to realize his agenda. He didn\u2019t pretend that the court was some apolitical bastion of dispassionate integrity \u2014 he saw it for what it was: a political weapon literally run by a former Republican nominee for president<\/a>.<\/p>\n

In 1937, Roosevelt unveiled his plan to expand the court by allowing presidents to add new justices when any current justice declined to retire after age seventy. He warned<\/a>\u00a0that without expansion, the Supreme Court was \u201ccoming more and more to constitute a scattered, loosely organized and slowly operating third house of the national legislature.\u201d<\/p>\n

In history books and modern punditry, this story then simply ends with the plan dying in Congress \u2014 allegedly because Americans pulverized by the Great Depression nonetheless loved the court that was kicking them in the face.<\/p>\n

However, a study of public opinion and the court\u2019s moves tell a much different tale of a president and his party losing a closely fought battle but winning a larger war.<\/p>\n

The\u00a0analysis<\/a> from Ohio State University political scientist Gregory Caldeira shows that Gallup polls found the public was hardly enamored with the court \u2014 on the contrary, voters were closely divided on the expansion idea when Roosevelt first proposed his legislation, even as the initiative faced largely negative press coverage from the\u00a0New York Times<\/em>, the dominant newspaper of the time.<\/p>\n

More important: public support for Roosevelt\u2019s expansion initiative only truly cratered when the court\u2019s conservative majority suddenly halted its attempts to block the New Deal. In particular, the court\u2019s surprising decisions to uphold a state minimum wage and then the pro-union Wagner Act deflated public support for court expansion, as did the subsequent retirement of one of the court\u2019s most conservative justices. The court soon after declined<\/a> to block social security.<\/p>\n

\u201cEvidence accumulated over the years goes against that notion of the (close) relationship between the public and the court,\u201d wrote Caldeira. \u201cI prefer, instead, a much more straightforward account: The Supreme Court outmaneuvered the president. Through a series of shrewd moves, the court put President Roosevelt in the position of arguing for a radical reform on the slimmest of justifications.\u201d<\/p>\n

But here\u2019s the key point: he notes that the court\u2019s \u201cshrewd moves\u201d that \u201coutmaneuvered\u201d FDR were in practice \u201can important jurisprudential retreat\u201d on policy<\/em>.<\/p>\n

\u201cPresident Roosevelt in essence offered the Supreme Court a choice between substantive policy and structural integrity,\u201d he concludes. \u201cThe court wisely chose to give up on the substantive issues and preserve its structural integrity.\u201d<\/p>\n

Buried on the Social Security Administration\u2019s website<\/a> is an accurate summary of what really happened: \u201cThe debate on this [expansion] proposal was heated, widespread and over in six months. The president would be decisively rebuffed, his reputation in history tarnished for all time. But the court, it seemed, got the message and suddenly shifted its course . . . the court would sustain a series of New Deal legislation, producing a \u2018constitutional revolution in the age of Roosevelt.\u2019\u201d<\/p>\n

As\u00a0Roosevelt<\/a>\u00a0himself put it after the fight was over: \u201cWe obtained 98 percent of all the objectives intended by the court plan.\u201d<\/p>\n

He was also\u00a0overwhelmingly reelected<\/a>\u00a0to a historic third term a few years after the battle.<\/p>\n\n \n \n \n

There Is No Other Viable Choice<\/h2>\n \n

For Democratic politicians, voters, media outlets, and advocacy groups, the moral of the story is not that reprising FDR\u2019s court battle would repeat his failure. It is the opposite: doing what FDR did is probably the only chance to repeat his success in beating back an out-of-control court.<\/p>\n

The good news is that at least a few party lawmakers are finally realizing that this isn\u2019t a\u00a0West Wing<\/em> episode requiring a Jed Bartlet monologue \u2014 this is a high-stakes power struggle requiring some FDR-style tactics. Indeed, there is now Democratic\u00a0legislation<\/a>\u00a0in Congress to add four justices to the panel. There is also\u00a0legislation<\/a>\u00a0to impose term limits on Supreme Court justices \u2014 which is a wildly popular idea, according to\u00a0survey data<\/a>.<\/p>\n

Even better: the justices are starting to worry about such pressure. In the past year, two of them delivered public<\/a>\u00a0speeches<\/a>\u00a0trying to defend the court\u2019s legitimacy \u2014 a signal that they are concerned that public confidence in the court has hit\u00a0historic lows<\/a>. In fact,\u00a0the entire Republican machine<\/a> that packed the court full of right-wing extremists is now panicking about court expansion \u2014 which is a sign that it\u2019s precisely what needs to happen.<\/p>\n

That said, there is no guarantee that the six archconservatives now spearheading today\u2019s judicial coup would react the same way as their predecessors during the New Deal. There may be nothing that prompts their retreat.<\/p>\n

But in that case, public support for expansion could rise if Democrats cite the court\u2019s extremism as yet more proof that expansion is necessary. This would require them to develop some intestinal fortitude and understand that public opinion is not static \u2014 it can be moved with enough rhetorical and legislative discipline.<\/p>\n

Of course, some Democratic voters first and foremost love norms \u2014 and they are anesthetized by a corporate media that is\u00a0forever<\/a>\u00a0pretending<\/a>\u00a0the court is dispassionate and its chief justice is a venerable statesman. So an FDR-esque crusade for court expansion might offend their sense of etiquette.<\/p>\n

But ask yourself: What is the alternative here?<\/p>\n

Emboldened by Democratic inaction after the antiabortion decision overturning Roe v. Wade<\/em>, the six right-wing justices now seem well\u00a0on their way to resurrecting the Lochner era<\/a>\u00a0\u2014 the inhumane judicial epoch that defined the period before Roosevelt\u2019s battle with the court.<\/p>\n

Roberts and his cronies clearly presume today\u2019s Democrats will just continue defending the judicial institution \u2014 even as the court destroys every other institution in America, from the\u00a0Environmental Protection Agency<\/a> to the Consumer Financial Protection Bureau<\/a>\u00a0to the\u00a0Securities and Exchange Commission<\/a> to democracy itself<\/a>. In short, they expect today\u2019s Democrats to never do what Roosevelt did \u2014 which would doom the country to a dystopian future.<\/p>\n\n \n \n \n\n \n \n

You can subscribe to David Sirota\u2019s investigative journalism project, the\u00a0Lever<\/i>, here<\/a>.<\/p>\n\n\n\n

This post was originally published on Jacobin<\/a>. <\/p>","protected":false},"excerpt":{"rendered":"

As six unelected extremists orchestrate a\u00a0judicial coup to repeal the twentieth century, you might be wondering: Why won\u2019t Democrats simply push to expand the court like it\u2019s been expanded before? Why is President Joe Biden\u00a0opposing\u00a0court expansion and why is House Speaker Nancy Pelosi\u00a0refusing\u00a0to allow a vote on the idea? Why is the Democratic Party defending [\u2026]<\/p>\n","protected":false},"author":1777,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[],"tags":[],"_links":{"self":[{"href":"https:\/\/radiofree.asia\/wp-json\/wp\/v2\/posts\/737993"}],"collection":[{"href":"https:\/\/radiofree.asia\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/radiofree.asia\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/radiofree.asia\/wp-json\/wp\/v2\/users\/1777"}],"replies":[{"embeddable":true,"href":"https:\/\/radiofree.asia\/wp-json\/wp\/v2\/comments?post=737993"}],"version-history":[{"count":1,"href":"https:\/\/radiofree.asia\/wp-json\/wp\/v2\/posts\/737993\/revisions"}],"predecessor-version":[{"id":737994,"href":"https:\/\/radiofree.asia\/wp-json\/wp\/v2\/posts\/737993\/revisions\/737994"}],"wp:attachment":[{"href":"https:\/\/radiofree.asia\/wp-json\/wp\/v2\/media?parent=737993"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/radiofree.asia\/wp-json\/wp\/v2\/categories?post=737993"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/radiofree.asia\/wp-json\/wp\/v2\/tags?post=737993"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}