Day: February 5, 2012

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.