The Unpredictable Supreme Court

Election night 1936, Hyde Park, New York: President Franklin Delano Roosevelt — his signature cigarette holder at a jaunty angle — sat up in his wheelchair and said, “Wow!” By a huge margin, FDR won a second term in the White House. He recorded the largest popular vote in history up to that time, and the best showing in the Electoral College since James Monroe ran unopposed in 1820. And, the Democratic Party held huge margins in both houses of Congress. 

But, Roosevelt’s joy was tempered by concern that a conservative Supreme Court would eviscerate most of his New Deal. Already, the court had declared key sections of the National Recovery Administration — the vehicle for industrial reconstruction — and the entire Agricultural Adjustment Act unconstitutional. Roosevelt feared the court would undo two other key New Deal legislative accomplishments: Social Security and the National Labor Relations Act, regarded by factor workers as their Magna Carta because it guaranteed the right to unionize. 

To prevent the Supreme Court from acting against important legislation, Roosevelt proposed, on February 5, 1937, to expand its size, to “pack” the court by increasing its members from nine to 15. The president badly had misjudged his mandate. The court proposal was wildly unpopular, even among Roosevelt’s allies in Congress, and, in July, the Senate, which had only 16 Republicans in it, voted down the court-packing plan by a vote of 70 to 22. 

The Supreme Court in 1937

The vote was moot, because by then enough conservative justices had switched to the liberal side to save the rest of the New Deal. In March, the justices upheld a Washington state minimum wage law. Two weeks later, the justices ruled in favor of the labor law, and, in May, the court found the Social Security statute constitutional. All of these cases were decided by a vote of 5 to 4. As one constitutional scholar said waggishly, “A switch in time saves nine.”

The court may have been saved, and the already enacted New Deal legislation preserved, but Roosevelt’s plans to build on his landslide and expand social and economic legislation were frustrated. The court-packing plan — which riled the huge Democratic congressional majorities — was one reason little further New Deal legislation became law. Also, a sharp recession in 1937 undid many of the gains made during Roosevelt’s first term, and a series of sit-down strikes in factories and instances of labor violence weakened support for further pro-union action and pushed the country to the right. Finally, Roosevelt’s decision to campaign against anti-New Deal Democrats in the 1938 primaries backfired, and the party suffered huge losses in the midterm elections (the president’s party usually does poorly in the sixth year of a two-term president’s tenure).

Justice Anthony Kennedy, who just announced his retirement

There are two lessons in the story of Roosevelt and the court. First, presidents can miscalculate in trying to bend the judiciary to their will (President Donald Trump, if you knew anything about American history, you would take this into consideration when nominating a replacement for Justice Anthony Kennedy). Second, the Supreme Court’s tactical shift to the left in the 1930s demonstrates that even the third branch of government is not impervious to public opinion (which, until Roosevelt tried to pack the court, was ardently pro-New Deal). The very conservative Chief Justice John Roberts’ ruling in favor of Obamacare may be taken as an indication that contemporary political issues influence judicial decisions. 

Would a court in which Trump added first Neil Gorsuch and then someone equally to the right be as pliable as the justices during the New Deal? Certainly, there is little reason to expect decisions reflecting current cultural mores on abortion and gay rights from Samuel Alito, Clarence Thomas, and Gorsuch. But, Roberts is known to care about his legacy as chief justice, making him perhaps reluctant to overturn established legal precedents such as Roe v. Wade. And, history is full of examples of justices who did not fulfill the political wishes of the presidents who appointed them. 

President Barack Obama announcing his nomination of Merrick Garland to the Supreme Court

Of course, Democrats would be foolish to rely on possibilities. Though the minority party has little leverage in the battle over Kennedy’s replacement, that does not mean Democrats should fold their tent and cower before the power of Senate Majority Leader Mitch McConnell. For starters, Democrats should use every parliamentary trick to delay action on whomever Trump names. Also, it does not hurt to repeat — and keep repeating — the argument McConnell made in 2016 to stymie President Barack Obama’s nomination of Merrick Garland to replace Justice Antonin Scalia. If it was too late in Obama’s term in February 2016 to vote on a new justice, it is too close now — in July — to the midterm elections to consider a replacement for Kennedy.

Finally, there is this potent argument: People — including presidents — under a cloud of investigation ought not to pick the judges who may decide their cases. To put it more bluntly: Congress should not vote on a Trump nominee until the investigation by the special counsel is over and it is clear that Trump is not guilty of any wrongdoing. McConnell and the rest of the Republican cohort are not likely to be impressed by this argument, but it should be made at every opportunity and in every way. After all, the Supreme Court in 1974 decided the fate of President Richard Nixon’s Oval Office tapes, and the current court may have to rule on whether a sitting president may pardon himself, be forced to testify before a grand jury, or be criminally indicted. 

In the end, of course, the president probably will get his second nominee onto the Supreme Court. And, that justice likely will tilt the court to the far right. Yet, if history is a precedent, it is difficult to predict how justices will rule when major societal issues are at stake. 

Posted July 3, 2018

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