Court Packing Plan

Presidents In Conflict With The Judiciary Are Nothing New Historically, But Trump Could Be The Biggest Threat Yet To Our Constitutional System

The conflict of President Donald Trump with the judiciary is not the first time there has been a challenge from a President to the judicial branch.

Thomas Jefferson and Andrew Jackson had regular conflict with Chief Justice John Marshall and the federal courts in the first third of the 19th century.

Abraham Lincoln had vehement disagreements with Chief Justice Roger Taney in the era of the Civil War.

Theodore Roosevelt and Woodrow Wilson both found the Supreme Court as standing in the way of progressive reform in the early 20th century.

Franklin D. Roosevelt was so frustrated by a conservative Supreme Court negating important legislation of the New Deal in the mid 1930s, that he proposed the idea of adding six new Justices to the Court in 1937. This came to be known as the “Court Packing” plan, and was soundly defeated, including by members of his own Democratic Party.

Richard Nixon had issues with the rulings of the Earl Warren Court before he was President, and the continued Warren influence on the Court under his successor, Warren Burger. And, Nixon was stopped dead in his tracks in US. V. Nixon in 1974, forcing him to hand over the Watergate Tapes to the Special Prosecutor, Leon Jaworski, leading him to resign the Presidency in August 1974.

Barack Obama was critical of the John Roberts Court on its conservative decisions early on in his Presidency in 2010.

And now, Donald Trump has unleashed what many consider the strongest challenge to the whole federal judiciary, alarming many constitutional experts as far more dangerous and threatening to the checks and balances of the Constitution and the separation of powers.

It is clear that Trump has declared war on the judiciary, but it could be that the Roberts Court will smack back at him when cases regarding his abuse of power make it to the Court, so Trump may be “hoist by hid own petard”, and regret the attacks he has made on the whole court system.

Conflict Between Presidents And Chief Justices Quite Common Historically

It is well known that President Barack Obama and Chief Justice John Roberts do not have a warm relationship, with Roberts chosen by George W. Bush, with Obama voting against his confirmation, and with the two men having totally different ideological views. Despite that, and the annoyance of Roberts over Obama’s condemnation of the Supreme Court for the Citizens United case of 2010, Roberts saved “ObamaCare” in June 2012, legitimizing it for the future, and gaining the anger of Republicans and conservatives. Who can say for sure how the relationship between Obama and Roberts will develop in the second term, and whether Roberts will surprise with more support of the administration than just the health care issue?

But the fact of their antagonism is not new in American history, as it is actually quite common that the Chief Justice is picked by a President of one ideological view, and will often clash with a future President of another party during his tenure on the Court.

The examples of such antagonism, far worse than the Obama-Roberts relationship, follow:

Thomas Jefferson and Chief Justice John Marshall (appointed by John Adams), on the Marbury V Madison case of 1803, dealing with Judicial Review. They were also distant cousins, who personally disliked each other.

Andrew Jackson and Chief Justice John Marshall (appointed by John Adams), on the removal of the Cherokee and other Indian Tribes after the Worcester V. Georgia and other similar cases in the 1830s.

Abraham Lincoln and Chief Justice Roger Taney (appointed by Andrew Jackson), over the Dred Scott V Sanford case in 1857, and the President’s use of war powers during the Civil War years until Taney’s death in 1864.

Franklin D. Roosevelt and Chief Justice Charles Evans Hughes (appointed by Herbert Hoover), over Supreme Court decisions during the New Deal years, and specifically FDR’s Court “Packing” Plan in 1937.

Richard Nixon and Chief Justice Earl Warren (appointed by Dwight D. Eisenhower), who Nixon had criticized in earlier years, and were rivals in California politics,and Warren trying to leave office under Lyndon B. Johnson, so Nixon would not replace him, but unable to do so due to controversy over Johnson’s nomination of Associate Justice Abe Fortas in 1968, leading to rejection, and Warren’s replacement, Warren Burger, being chosen by Nixon in 1969.

Bill Clinton and Chief Justice William Rehnquist (appointed by Ronald Reagan), who had major disagreements on policy, but Rehnquist conducted himself well at the Bill Clinton Impeachment Trial in 1999.

So the antagonism and rivalry of Presidents and Chief Justices is nothing new!

Showdowns Between Presidents And The Supreme Court: Jefferson, Jackson, Lincoln, Franklin D. Roosevelt, Nixon, And Obama

President Barack Obama today challenged the Supreme Court to support the Obama Health Care legislation, which was argued last week before the Court in an unprecedented three day, six hour presentation by the two sides in the case.

Obama made clear that two conservative Circuit Court judges, Laurence Silberman and Jeffrey Sutton, have backed the legislation as constitutional.

Just by simply answering a question from a journalist, what Obama has done is thrown down the gauntlet to the Court, as he did when he criticized them face to face at the State of the Union Address in 2010, shortly after the decision in the Citizens United case, the most unpopular decision of the Court since Bush V. Gore in 2000.

As the author listened to Obama’s challenge to the Court, it brought back the history of Presidential challenges to the Supreme Court in the past.

Thomas Jefferson and Andrew Jackson challenged the Court’s authority, causing antagonism between both Presidents and Chief Justice John Marshall.

Abraham Lincoln was critical of the Dred Scott Decision before his Presidency, and was in conflict with Chief Justice Roger Taney during the Civil War, until Taney’s death in 1864.

Franklin D. Roosevelt denounced the Supreme Court over challenges to the New Deal programs, and tried to “pack” the Court, and Chief Justice Charles Evans Hughes defended the Court from the attacks of the President.

Richard Nixon denounced the Court as too liberal and permissive under Chief Justice Earl Warren, when Nixon ran for President, with Warren swearing him in as President, and then retiring later in 1969. Nixon then had the opportunity to make four Supreme Court appointments and turn the Court more conservative.

And now, Barack Obama has challenged the Court for the second time, with Chief Justice John Roberts expressing discontent, after the fact, to the first criticism of the Court, expressed during the State of the Union Address.

Wondering what the ultimate relationship between Obama, and the Chief Justice and the entire Court in the future, will be, is one of the key events of this election year!

Certainly, Obama is in good company, distinguished company, with the other Presidents who have challenged the Supreme Court!

75th Anniversary Of Supreme Court “Packing” Plan Of FDR: Its Significance Today

Seventy five years ago on this day, President Franklin D. Roosevelt introduced his plan to reorganize the Supreme Court, becoming known as an attempt to “pack” the Court, which became a turning point in many ways, including the fact that it was repudiated by the Senate in July 1937; weakened the power and clout of FDR shortly after his landslide victory in 1936; and led rapidly to a transformation of the Court, and FDR replacing, over the next five years, all but two members of the Court he was challenging.

The Supreme Court had stood in the way of change and progress during the Great Depression, declaring many New Deal laws unconstitutional, and FDR brought the Justices under attack as a result. Bitterly criticized as acting dictatorial, FDR was put on the defensive, but the long range was the Court adapting to an expansive view of the Constitution within a short time, and leading to a Court which dealt with the expansion of federal power and greater support of civil liberties and civil rights.

Today, three quarters of a century later, the Republican dominated Supreme Court has opened up the gates of campaign spending abuse in election campaigns, by its Citizens United decision of 2010. Additionally, crucial cases, including the Obama Health Care Plan, are to be decided by June, which will determine the fate of much of what Barack Obama has done and wishes to do as part of his agenda as President. Obama already made clear his criticism of the direction of the Court two years ago, with the Justices sitting there at the State of the Union Address. And three of the nine Justices–Antonin Scalia, Clarence Thomas, and Samuel Alito–have boycotted the past two State of the Union Addresses, and represent the major challenge to the Obama Presidency, more than any other members of the Court.

No one is saying or predicting that Obama will attempt such a bold act as FDR did, and were he to do so, it would certainly cause the biggest controversy and split possible to imagine, greater than any issue so far in his administration.

But the Supreme Court IS an issue in the upcoming Presidential campaign, as the likelihood of replacements on the Court in the next term are very likely. This is particularly the case with Ruth Bader Ginsberg, who has had bouts with cancer, and would pass 80 years of age at the beginning of the next term. Her liberal vote would be lost if the Republicans win the White House and she leaves the Court. Additionally, based on aging, it is possible to imagine that Anthony Kennedy, Antonin Scalia, and Stephen Breyer could leave the Court before 2017.

So who is elected President, and who controls the majority of the US Senate, which would need to confirm a Court appointment, is very significant, although not much attention is being paid to this issue because of the troubles with the economy.