President Biden is under pressure to find a way to control a Supreme Court whose present majority may find constitutional limits to what the Democratic party’s left wing is urging him to do. He has created a 36-member Commission to cope with the explosive question of packing the Supreme Court with additional Justices in order to create a compliant 7-6 liberal majority to support his proposals.
This immediately brings to mind Democratic President Franklin D. Roosevelt’s infamous Court packing plan of 1937. Over the previous four years the conservative majority of the Court had found one after another New Deal program unconstitutional. FDR’s “solution” was to get Congress to let him appoint up to six additional Justices to give him unquestioned authority to do whatever he wanted to do to relieve the Depression and – as his critics described it – install a fascist economy directed from the White House.
FDR put forth the spurious argument that “aged and infirm justices” needed help to work through the Court’s crowded dockets. The historian William D. Leuchtenberg, friendly to the New Deal, wrote that “Roosevelt could scarcely have bungled the presentation of the Court plan more… In attempting to alter the Court, Roosevelt had attacked one of the symbols which many believed the nation needed for its sense of unity as a body politic.” Four months later, after the Democratic Party had torn itself to pieces over it, the Senate buried FDR’s plan in disgrace.
Here’s a Vermont footnote: The first bold voice against FDR’s Court-packing plan in the Democratic House was Rep. Samuel A. Pettengill. Born in Oregon, after his mother died he returned at age six to grow up in his ancestral family home in Grafton, Vermont. He was graduated from Vermont Academy, Middlebury College, and Yale Law School, went into law practice in Indiana, and served eight years in the House.
A Jeffersonian states rights, free enterprise, sound money Democrat (a species now thoroughly extinct), Pettengill co-authored many early New Deal acts dealing with railroads, commodity exchanges, public utilities, and aviation. But by 1937 he had moved steadily away from what the New Deal had become. His speech condemning FDR’s Court-packing plan in 1937 did much to bring about its demise. A furious FDR vowed to unseat Pettengill, who chose to retire from the House. Eighteen years later he retired to his beloved Grafton where he died in 1974.
If his commission’s report gives Biden an excuse to promote another Court-packing plan, it will likely meet the same fate as FDR’s. Republicans are of course dead set against any such plan. Last month, Clint Bolick, a libertarian Justice on the Arizona Supreme Court, wrote “just as when President Franklin Delano Roosevelt tried to expand the Supreme Court’s size, the goal is clear: to procure judicial decisions that the current government favors. The Supreme Court would become merely another political body, comprising not an independent check on government power, but merely a rubber-stamp for the party in power — exactly the role the judiciary plays in countries such as Russia, China, Venezuela and Poland.”
There will also be significant resistance from Democrats. Justice Stephen Breyer, appointed by President Clinton and one of the Court’s three consistent liberals, warned in an address at Harvard Law School last month that advocates of expanding the Supreme Court to dilute the power of its constitutionalist majority should “think long and hard” about the risk of making justices appear more political, eroding public confidence in the Court.
He continued, “the Court’s authority depends on a trust that the Court is guided by legal principle, not politics. Structural alteration motivated by the perception of political influence can only feed that latter perception, further eroding that trust.”
To put it in stark relief: packing the Supreme Court with additional justices ready to do the bidding of the appointing president will make the Court a servant of the ruling party. That will destroy the independence of the Judiciary and fatally rupture the American system of a government of separated powers and constitutional fidelity.
Sen. Patrick Leahy, formerly chair of the Senate Judiciary Committee, will have great influence on the Democratic response to a Biden Court packing plan. Speaking four years ago of the Senate’s rejection of Roosevelt’s proposal, he said “The Judiciary Committee once stood against a court-packing scheme that would have eroded judicial independence. That was a proud moment.”
And there’s this from another former Senate Judiciary Committee chair: “[Court-packing] is a bonehead idea – a terrible mistake to put in question the most significant body in the country, the Supreme Court.” That was Sen. Joe Biden.
Let us hope that Vermont’s members of Congress today recognize the principles, wisdom, and integrity of Sam Pettengill, and act as courageously.
John McClaughry is vice president of the Ethan Allen Institute.