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Why FDR flopped in his SCOTUS packing — and why Biden won’t try

Earl Ofari Hutchinson

In a meeting in spring of 1935 with his attorney general, Homer Cummings, Franklin Roosevelt railed against the Supreme Court. Cummings was even more blunt, saying, “They mean to destroy us … We will have to find a way to get rid of the present membership of the Supreme Court.”  FDR and Cummings were enraged that the conservative majority on the high court had repeatedly struck down key portions of his New Deal legislation. FDR needed no prodding from Cummings to act. He quickly announced he’d push to add six more justices to the SCOTUS.

The instant that Senate Majority Leader Mitch McConnell and Trump announced that they’d bull ahead and steamroll through the confirmation of Amy Coney Barrett to replace the late SCOTUS Justice Ruth Bader Ginsburg, the heat was on for Democratic presidential candidate Joe Biden, once in the White House, to do exactly what a frustrated and angered FDR tried to do with the SCOTUS — namely, pack it.

Barrett’s writings, rulings, opinions and her far-right evangelical fringe group allegiance, mark her as a right idealogue every bit in the mold of Antonin Scalia. She is expected to almost certainly cement the fifth vote in an iron lock conservative majority. John Roberts, to the bitter disappointment of rightist legal advocacy groups, has failed to be that cemented fifth vote.

However, there are problems in pushing Biden to commit to pile more justices on the court. Start with Biden himself. He is not prepared to make that commitment. And each time he’s been asked whether he will, he’s demurred, been evasive or stayed silent. Biden almost certainly knows the history and dismal outcome of what happened when FDR tried it in 1937.

FDR was on firm ground in rightly citing that there is no legal or constitutional provision that limits the high court to nine justices. Congress at different times has put various numbers of justices as the court’s complement. The court’s conservative majority then was unabashed in their intent to gut or outright nullify major New Deal laws on labor, social security, unemployment and the White House’s regulatory powers. FDR proposed an amendment to rein in the court’s power to throttle legislation. But that went nowhere. So, he proposed to add six new justices, one for every justice over age 70 that refused to retire. There were six of them, though not all conservative.

The backlash against FDR was titanic. The GOP, much of the media and the majority of Democrats led the charge. FDR was lambasted as a dictator and a tyrant, and his move was called a naked power grab. The near-universal consensus was that court-packing would set a dangerous precedent.

Now, FDR had just won one of the greatest landslide reelection victories in the nation’s history. His gargantuan popularity meant little, though, in garnering public support for his court expansion plan. He backed down and withdrew it.

FDR’s flop is a cautionary note. The SCOTUS is top-heavy tradition-bound and massively revered, and it has been firmly shielded by custom from any direct political interference. Throughout the nation’s history, the SCOTUS has had every brand of ideology among its justices — liberal, moderate, conservative and rigidly right idealogue.

There’s one other factor to consider in any demand that Biden do a modern-day version of FDR’s court-pack plan. That’s the nation’s changing political and social demographics. Voters are increasingly younger, more diverse and more liberal. This almost certainly will translate into more robust Democratic party majorities in more state governments, Congress and the White House. The old saw is that SCOTUS justices read the newspapers and watch cable news too. No matter how much conservatives may spout “originalist” notions of a frozen, unchangeable Constitution, they are not immune to the nation’s changing trends and public opinion.

FDR witnessed that change. Several of the hard-nosed judges that made his legislative life miserable soon retired. He was able finally to appoint the type of judges that he wanted. The court also got the message that things were changing, and became more compliant to FDR, for the most part keeping hands off other legislative initiatives of his.

Biden need simply bide his time and learn from this history. He’ll get the court that he wants. FDR did.

Earl Ofari Hutchinson is an author and political analyst.