Packing the Court Might Work. Threatening to Pack It Did.

What Joe Biden can learn from FDR.

Traditionally, Franklin Delano Roosevelt’s attempt to pack the Supreme Court is viewed as a disaster. “Dear Democrats: FDR’s court-packing scheme was a ‘humiliating’ defeat,” wrote the Washington Post in 2019. Citing “New Deal history,” two law professors argued in the Atlantic that “a titanic contest over the Supreme Court hardly seems worth it.” In National Review, Charles Cooke dismissed talk of expansion as “silly” by citing Roosevelt’s doomed efforts. “Back in 1937,” he wrote, “when the country was less divided than it is now, FDR was more popular than a President Biden would be, and voters cared less about the Supreme Court, court-packing was met with a definitive ‘no.’” The message to Democrats is simple: don’t even bother.

These assessments are correct in a literal sense. Faced with a Supreme Court that aggressively overturned significant portions of the New Deal, Roosevelt proposed legislation to expand its size. The bill never received a vote. The number of justices remained at nine.

But shortly after Roosevelt introduced his court-packing scheme, the Supreme Court stopped overturning the administration’s programs. The shift was widely seen as related to the president’s frontal attack on the judiciary—“the switch in time that saved nine,” as one contemporary humorist put it. The most important swing justice, Owen Roberts, eventually suggested as much. Speaking before Congress in 1954, Roberts said that FDR’s packing plan placed “tremendous strain and threat to the existing Court of which I was fully conscious.”

Throughout modern U.S. history, the Supreme Court has proven susceptible to outside pressure. FDR’s court-packing proposal is just one of the successful institutional attacks. In the mid-1950s, the liberal Warren Court backed away from protecting victims of McCarthyism because a popular Senate bill threatened to strip the Court’s powers. Throughout the 1970s and 1980s, conservative politicians flooded Congress with legislation to stop the Court from ruling on racial integration. The justices retreated from enforcing busing regulations.

For Democrats worried about being railroaded by a six-three conservative bench, these conflicts should be instructive. In none of these instances did Congress or the president truly enact laws that changed the Court. In each of them, the Court changed anyway. These attacks can exact costs, as FDR discovered. His particularly aggressive push weakened his power within Congress. But they also have clear payoffs. Threats to pack, strip, or otherwise limit the Court—done with credibility—can influence judicial behavior.

“Historically, I think we have found that the Court gets the message,” said Keith Whittington, a political scientist at Princeton University who studies the politics of the judiciary. “When conservatives are pressing these types of bills, the Court becomes a little more conservative. When liberals are pressing these types of bills, the Court becomes a little more liberal.”

If Joe Biden takes office in January, he will confront a landscape not unlike the one FDR faced in 1937. Biden, like Roosevelt, will grapple with an economic downturn of historic dimensions. He’ll have won promising to enact a variety of sizable spending and welfare programs. In interviews, Biden has explicitly cited the Roosevelt presidency as a template.

But, much like FDR, Biden will have to contend with a Supreme Court stacked with six conservatives. For Roosevelt, these six men were perhaps his most powerful enemies. With large majorities in both the House and Senate, the president moved transformative economic legislation—from minimum wages to maximum hours—with remarkable ease, only to have it struck down by the justices who didn’t abide by the bromide of not “legislating from the bench.” These activist rulings infuriated Roosevelt, who in 1935 declared that the Court was creating a “‘no-man’s-land’ where no government—state or federal—can function.” They also stirred up popular sentiment. Much like today, the Supreme Court hung over the 1936 presidential election.

FDR won that election with more than 60 percent of the vote. Emboldened, he decided to confront the Court. Within weeks of his inauguration, Roosevelt announced an initiative to add six justices to the body. The Supreme Court was furious. Privately, chief justice Charles Hughes remarked that the bill would “destroy the Court as an institution.”

At first, the public was closely divided over Roosevelt’s plan, as was Congress. Republicans, southern conservatives, and some liberals came out against the idea. But the Senate Majority Leader, who was promised a seat on the expanded bench, backed the president. After a fireside chat on March 8, so did a slight majority of Americans. “We cannot yield our constitutional destiny to the personal judgment of a few men who, being fearful of the future, would deny us the necessary means of dealing with the present,” Roosevelt said.

As FDR spoke, the Court was preparing to rule on perhaps the biggest case of his tenure, National Labor Relations Board v. Jones & Laughlin Steel Corporation. The decision would determine the constitutionality of the National Labor Relations Act, landmark New Deal legislation that made it significantly easier to join and form a union. Legal observers widely expected that the act, like its predecessors, would fall. So did the president.

Instead, in early April, the Court upheld it in a five-four decision, with Hughes and Roberts in the majority. Almost immediately afterward, public support for court-packing dipped. Then, at the end of May, the Court upheld the creation of Social Security, again in a surprise five-to-four ruling. The plan grew even more unpopular. In a May 25 cartoon in the Rochester Times-Union, Roosevelt’s “Supreme Court Packing Case” was depicted as a large crate, collapsing as the Court’s various liberal decisions, each representing an underlying plank, toppled beneath it. By the end of July, FDR’s proposal was dead.

There’s a vigorous academic debate about to what extent the Court’s pivot had to do with pressure from Roosevelt versus organic jurisprudential development. There’s no doubt that the Court’s constitutional doctrine was already evolving in ways that made siding with the president easier. The Court that had struck down child labor laws and FDR’s National Recovery Act was evolving into a body more deferential to Congress. But it’s hard to see how the swing justices couldn’t have been touched by Roosevelt’s attacks and the resulting public discourse. As the New Yorker sarcastically wrote in 1937, the only way the Supreme Court could not have been impacted was if its then new building, completed in 1935, “has a soundproof room, to which the Justices retire to change their minds.”

Does that mean if Democrats win in November, they could be equally effective by threatening a pack? There are reasons to be skeptical. If he wins, Biden will not enter the White House backed by more than 500 electoral votes. If Democrats control 52 Senate seats come 2021, they will consider it a roaring success. In 1937, the party held more than 70. It’s also unclear that the Roberts Court would aggressively strike down Biden legislation.

But some of the differences between Roosevelt’s era and today’s could actually work to the advantage of modern Democrats. In the 1930s, the Democratic Party was a sprawling entity, featuring both New Deal liberals and the southern right. The latter were some of the most tenacious opponents of court-packing. They included, for example, former Texas congressman John Nance Gardner—Roosevelt’s own vice president.

Today, the Democratic Party is far more unified. The southern conservative constituencies that once fought Roosevelt now vote Republican. Unlike FDR’s vice president, Kamala Harris won’t go AWOL. She expressed openness to expanding the size of the Supreme Court during the Democratic primaries, well before the death of Ruth Bader Ginsburg led Biden to soften his opposition.

FDR was not the first person to intimidate the Supreme Court. In the Progressive Era, major politicians put forth all kinds of proposals to curb the power of a judiciary they viewed as in thrall to big businesses, from allowing voters to override Supreme Court decisions to making it easier to recall justices. None passed, but scholars believe the clamor may have kept the Court from making it impossible for reformers to reshape economic power. They’re not alone in that assessment. “I may not know much about law,” President Theodore Roosevelt remarked in 1905, “but I do know that one can put the fear of God in judges.”

In the latter half of the twentieth century, politicians toyed with more targeted attacks. According to Article III, Section 2, the Supreme Court has appellate jurisdiction over all cases “with such exceptions, and under such regulations as the Congress shall make.” Conservative congressmen and senators seized on this language to propose bills that would “strip” the Court of its right to rule on racial integration. These bills, for the most part, went nowhere. But, much like court packing, they were still impactful. During the tenure of Chief Justice Warren Burger from 1969 to 1986, the justices kept careful track of “jurisdiction-stripping” legislation, circulating them to one another whenever they came up. Burger himself kept a file of all these proposals as they moved through Congress. In both the 1970s and 1980s, the Court retreated from many attempts to force integration, even as it gave a yellow light to affirmative action.

Part of that change, no doubt, stems from personnel; the Burger Court had more conservative membership than the Warren Court that preceded it. But academics argue that congressional pressure also had a clear role. In a memo to eight of the Court’s justices, for example, one law clerk noted that a major busing case had attracted great political and congressional controversy. He recommended that the judges deny the petition. They did.

“The clerk is writing for eight of the nine justices,” said Tom Clark, a political scientist at Emory University and the author of The Limits of Judicial Independence. “[It] tells me that the clerk was aware the justices would want to know that.”

It’s unclear exactly why John Roberts decided in 2012 to uphold the Affordable Care Act, but it’s entirely possible that his vote was one of institutional deference: he didn’t want to nullify a sitting president’s greatest accomplishment. And so far, under Trump, Roberts has sided with liberals on a number of surprising occasions, including an abortion case. Perhaps that’s to keep the Court from being dragged into the country’s partisan slugfest. Perhaps, and relatedly, it’s because of Democrats’ heated rhetoric about the need to bend the judiciary.

“I think he takes those threats seriously,” Whittington told me.

But if all goes to plan for the GOP, come 2021, Roberts will no longer be the Court’s swing justice. That title will instead belong to either Neil Gorsuch or Brett Kavanaugh. Both were elevated to their jobs by a conservative judicial movement increasingly incensed that the Supreme Court won’t tack further right, even though Republicans have appointed 12 of the last 16 justices. The Court’s newest prospective member, Amy Coney Barrett, clerked for Antonin Scalia. With such a rock-solid conservative majority, can this bench really show restraint and not overturn liberal initiatives?

The behavior of some leading jurists suggests the answer is no. In a speech before Notre Dame Law School (where Barrett used to teach), Attorney General William Barr summarized much of the legal right’s thinking in astonishingly blunt terms. “Militant secularists,” he warned, “seem to take a delight in compelling people to violate their conscience.” He cited as evidence a now-struck down Affordable Care Act provision requiring that employers cover contraception.

On the other hand, many of the justices who fought Roosevelt’s New Deal had similarly apocalyptic visions. The sweeping programs FDR thought necessary for the economy were, to them, a tyrannical violation of the constitution. Dissenting from a case that upheld Congress’s power to heavily regulate gold, four of the era’s justices declared that the government’s actions “annihilate its own obligations” and destroy “the very rights” the constitution was supposed to protect. That passion didn’t stop two justices from bowing to popular reality. As Justice Owen Roberts said after Roosevelt’s reelection, “the Court took cognizance of the popular will.”

Today’s Chief Justice Roberts is also clearly concerned with the Court’s legitimacy and does not want it to be seen as a purely partisan body. And despite their impeccably conservative credentials, Kavanaugh and Gorsuch have both proven a willingness to break with orthodoxy on high-profile occasions—including a seismic expansion of LGBTQ rights in Gorsuch’s case.

Whether the Court can be pressured, then, may ultimately come down to just how much muscle Democrats are willing to employ. To truly constrain the Court, the party must obviously win both the presidency and the senate. But winning is not enough. They must be willing to credibly threaten the Court, something that requires a unified front on the judiciary. Right now, such unity is very much lacking. But that may well shift with the appointment of Barrett. Chuck Schumer, a procedural moderate, told reporters that if Republicans fill Ginsburg’s seat, “nothing is off the table.” Biden, a former court-packing opponent, now ducks court-packing questions. Even Joe Manchin, the lone Democrat to vote to confirm Kavanaugh, has avoided ruling it out. When pressed by Fox News if he’d vote to expand the bench, the West Virginian simply replied that court packing “wouldn’t help anyone”—and left it at that.

The upcoming confirmation battle is not the only thing that could radicalize Democrats. Support for reining in the Supreme Court will become fevered if it actually strikes down, rather than “simply” menaces, cornerstone liberal policies. Not long after the election (and in the midst of whatever chaos comes next), the bench will hear its third challenge to the Affordable Care Act. If Democrats win the White House and Senate, and the Court still invalidates the ACA in the midst of a pandemic, the party of FDR may not be able to resist retaliatory measures. Biden famously called the Act’s passage, which came while he was vice president, a “big fucking deal.” It is unlikely he will let it go gentle into that good night.

Today’s justices, of course, know this. Like their counterparts in the 1930s, they do not exist in a soundproof room. If they nonetheless begin an aggressive assault on whatever New Deal-style social policies liberals enact—like the public option, major climate change legislation, or heavy regulations on internet giants—they will be wagering that Democrats are just full of hot air. They might be right. The Court is generally more popular than Congress or the president, making attacks on it very risky. Indeed, even Roosevelt, operating at the peak of his powers, paid a political cost for battling the bench. Roosevelt’s plan helped save laws he had already passed. But it alienated many Congressional Democrats, and his New Deal was effectively ended by the election of conservatives in 1938.

Nonetheless, modern Democrats cannot shy away from intimidation. The justices FDR confronted were almost all in their seventies; Democrats, if not FDR who was considering a third term, may have been able to wait them out. Today’s conservatives are substantially younger. Coney Barrett is 48, and if she’s confirmed and stays on the court until Ginsburg’s age, she’ll be ruling until 2059. And as the 1970s showed, politicians don’t need to threaten the Court with packing to get a response. Stripping legislation that limits the court’s powers could help Democrats send a similarly powerful message. The party may not need to go as far as did Roosevelt.

But if they face serious defeat at the Court, they can learn from his resolve. “You’ve got to really rattle the saber,” said Whittington. “Then you get the justices to respond.”

Donate Now to the Washington Monthly and your gift will be doubled

Daniel Block

Daniel Block is the executive editor of the Washington Monthly.