The Case for Threatening the Courts

There’s a long history of politicians successfully pressuring the justices.

Traditionally, Franklin Delano Roosevelt’s attempt to expand the Supreme Court is viewed as a disaster. “Dear Democrats: FDR’s court-packing scheme was a ‘humiliating’ defeat,” The Washington Post wrote 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 proposal, the 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 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 proved susceptible to outside pressure. FDR’s proposal is just one of many 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 ’80s, 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 6–3 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 expand, 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,” Keith Whittington, a political scientist at Princeton University who studies the politics of the judiciary, told me. “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 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 Senate Majority Leader Joseph Robinson, who was promised a seat on the expanded bench, backed the president. After a fireside chat on March 8, so did a large plurality 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 mid-April, the Court upheld it in a 5–4 decision, with Hughes and Roberts in the majority. Almost immediately afterward, public support for adding justices dipped. Then, at the end of May, the Court upheld the creation of Social Security, again in a surprise 5–4 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 the extent to which 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 that if Democrats win in November, they could be equally effective by threatening to expand the size of the bench? 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 if the Roberts Court will 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 expansion. They included, for
example, former Texas Congressman John Nance Garner—Roosevelt’s own vice president.

Today, the Democratic Party is far more unified. The southern conservative constituencies that once fought Roosevelt now almost all 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 that 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 20th century, politicians toyed with more targeted attacks. According to Article III, Section 2 of the Constitution, 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 FDR’s court-expansion attempt, they still made a difference. 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 a petition to hear it. They followed his advice.

“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.”

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.

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 Donald 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,” Princeton’s Whittington said.

But once Amy Coney Barrett is confirmed (her nomination is pending as of this writing), Roberts will no longer be the Court’s swing justice. That title will instead likely 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. Barrett clerked for Antonin Scalia. With such a rock-solid conservative majority, this bench will be more hostile to liberal policies than the one that came before. Can we really expect it to show any restraint?

The behavior of some leading jurists suggests that the answer is no. In a speech before Notre Dame Law School (where Barrett used to teach), Attorney General Bill 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.”

Whether the Court can be pressured may ultimately come down to just how much muscle Democrats are willing to employ. To truly constrain the Court, the party must, of course, win both the presidency and the Senate. But winning is not enough.

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 shown a willingness to break with orthodoxy on high-profile occasions—including, in the case of Gorsuch, a seismic expansion of LGBTQ rights.

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, of course, 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 bold, unified front on the judiciary. Right now, such tenacity and unity are lacking. But that may well be changing. Senate Minority Leader Chuck Schumer, a procedural moderate, told reporters in late September that should Republicans fill Ginsburg’s seat, “nothing is off the table.” Biden, a former court-expansion opponent, now ducks court-expansion questions. Even Pennsylvania Senator Bob Casey, one of the only congressional Democrats who support overturning Roe v. Wade, told reporters he wants “to get through the election” before taking a stance.

Barrett’s confirmation is not the only thing radicalizing 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 during 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 that 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 a public health insurance option, major climate change legislation, or heavy regulations on internet giants—they will be wagering that Democrats are just full of hot air. They may well be right. The Court is generally more popular than Congress or the president, making attacks on it very risky. 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 70s; he might have been able to wait them out. Today’s conservatives are substantially younger. 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 expansion to get a response. Stripping legislation that limits the Court’s powers could also help Democrats send a powerful message. The party may not need to go as far as Roosevelt did to make their point.

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

This is an updated version of “Packing the Court Might Work. Threatening to Pack It Did,” which first appeared online on September 26, 2020. 

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Daniel Block

Daniel Block is the executive editor of the Washington Monthly.