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We Need To Challenge The Supreme Court's Power Like FDR [1]
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Date: 2022-07-10
In the 1930s, the US Supereme Court tried to block President Franklin Roosevelt’s New Deal. The President decided to challenge the court head on, and won. The Democratic Party needs to learn from this example and do the same again.
Although this is contrary to the popular version of that story, recently regurgitated online, FDR became greedy attempting to fill the Supreme Court with ideological supporters and failed. This is set up as caution to President Biden and Democratic Party lawmakers doing the same. But this is not the correct lesson from that period in our nation’s history. Yes, FDR failed to change the ideological makeup of the court, but what’s left behind in this story is that his court expansion plan went a long way to tame the court and this is the lesson we must draw as we continue to challenge this woefully unrepresentative court.
In a speech in 1932, Roosevelt set off a storm of controversy when he opined that Americans were being stimied by the Republicans who controlled mutiple branche of the Federal government, including the Supereme Court. The scandal erupted over what was considered the President’s attempt to politicize what was considered a neutral institution.
The court went on to strike down some of the President’s most crucial New Deal programs, including the Agricultural Adjustment Act and the National Recovery Act. Following his reelection in 1936, FDR understood that confronting this court directly was invevitable.
In 1937 the President announced plans to add new justices to challege the Republican hegemony, but this plan eventually died in Congress. However, what is forgotten is that, as soon as this plan was announced, the Court began change course and allowing major pieces of the President’s legislation to pass. This included upholding the minimum wage and the Wagner Act (a crucial piece of pro-union legislation). Social security was also upheld by the court, which took away the urgency for court reform.
In essence, this was the judiciary retreating on the issue of policy and deferring such matters to the executive branch.
The result was, FDR was able to enact all his New Deal policies and was overwhelmingly reelected for an unprecedented third term.
Our lessons from this moment should not be, that challenging the Supreme Court would leave to an embarassing failure. But, rather, it is necessary in order to beat-back an out-of-control court.
We now have legislation in Congress to dramatically increase the number of justices on the court and to impose legal term limits. We know at least some of the justices are already beginning to worry about such legislation. The entire right-wing media is already panicking about the thought.
Some of us worry, that going too far in court reform could alienate publich support, including those Democratic Party voters who value norms and procedures — but what are the alternatives? A return to the pre-New Deal era of an inhumane, out-of-touch, policy-forming Supreme Court? The Republican Party and the convservatice judiciary are already hoping that today’s Democratic Party doesn’t have the stomach to challenge the court. We need to prove them wrong!
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