PACKING THE COURT--REVISITED

The Senate hearings on nominee Amy Coney Barrett have  intensified the discussions of the pros and cons of court packing in the event the Democrats take the White House and the Senate. The Democrats have refused to affirm or deny they would pack the court in response to the Republican hypocrisy regarding their Merrick Garland – Coney Barrett manipulation.

I see three prominent court pack issues:

First: Ethics. Is it fair, is it right, to pack the Court and thereby make it into another "political" body? Indeed, one might call it a "super legislature,” an organ of government far beyond anything contemplated by the text of the Constitution. 

I suggest that train has left the station. Historically, this country has frequently used the Court for political purposes. And after the gross manipulation of the Garland/Barrett nominations, for the Republican majority to raise the question of Democratic “manipulation” or “politicizing” the Court, is the height of chutzpah.

Second, adversaries of a court pack plan argue that it would be a bad precedent because it would just introduce a see-saw effect, with each new administration having control of the White House and the Senate jiggering the number of justices.

That, I suggest is an argument that overlooks the fact that this country has changed the number of Justices five times since the Founding. Many of those changes were out-and-out political measures, especially the "little-pack" engineered by Abraham Lincoln when he persuaded the 1863 Congress to increase the size of the court to 10 to reinforce his ability to prosecute the Civil War and assure proper enforcement of the post-Civil War Constitutional Amendments.

And after Lincoln was assassinated, and the Congress recognized that his successor, Andrew Johnson, was a pro-slavery advocate, we had a “reverse pack”: they stripped him of the ability to appoint anyone to the court by reducing, via attrition, the number of Justices to six! And as soon as Johnson was out of office, they changed the number back to nine, where it has remained for more than a century and a half. No see-saws. No, Henny, the sky did not fall.

Bottom line, the argument that a change in the number of Justices would result in constant back-and-forth is totally unsupported by history.

 

Third, some argue that a 2021 effort by the Democrats to pack the court is doomed to failure because FDR failed to accomplish that in 1937, and if FDR couldn't do it then, for sure Biden couldn't do it now. 

That mistaken notion is the centerpiece of this over-long essay. I suggest the evidence (of which I was unaware until it was recently pointed out to me by a reader of this blog) suggests that FDR’s failure to succeed was not because of a national reluctance to change the size of the Court, but was the result of a gross political error on the part of FDR and his Attorney General, ignoring the advice of the drafter of the court packing plan. 

Some words of background, surely known to many readers:

This country endured a Constitutional crisis during the years 1935-1938. 

When FDR was inaugurated in March 1933, every bank in the United States was closed. The country’s economy was marked by shuttered factories, deserted farms, massive unemployment, and a starving populace. The new Congress passed laws providing relief to farmers, enacting minimum wage laws, pensions for retired workers, and a major pillar of the New Deal, The National Industrial Recovery Act (the NRA).

And the “Nine Old Men” of the Supreme Court found every one of the New Deal pieces of remedial legislation to be unconstitutional! The Justices didn’t use the shibboleths “originalism” or “textualism” but make no mistake, that was the precise basis of their decisions.They just found that the Constitution, as written in 1787, did not provide for federal aid to farmers, national wage and price controls, social security and pension legislation, etc., etc.

The Roosevelt administration worked 24/7 to find a solution to the problem. A brilliant 27 yr.-old lawyer, Warner W. Gardner, working in the Solicitor General’s office, was tasked with the responsibility to develop a plan. He considered any number of options. His 65-page memorandum concluded the Court could neither be stripped of its power to declare legislation unconstitutional, nor could the Congress require a super majority to invalidate its enactments. On the other hand, stripping the court of appellate jurisdiction was constitutional but was simply too “distasteful to be acceptable,” as was a plan to reduce the pensions of Justices who failed to resign by their 70th birthday!

But what would work, was his plan to add one Justice to the Court for each Justice over 70 years old. In 1936, that would have added four Justices. But importantly, the plan also made it likely the number of Justices would ultimately settle at nine, because as Justices retired, no new Justices could be added until the Court shrunk to fewer than nine.

It was obvious to all that the need to add Justices was a result of the Court’s torpedoing every significant piece of remedial legislation, with the result that the country’s economic calamity went untreated. But in two tactical errors, the President and his Attorney General i) modified the plan by eliminating the “fall-back” to nine Justices,  (establishing the max at 15,) and ii) urged Congress to pass the bill because the aged justices needed help in conducting the courts business, i.e., their ability to adjudicate was hampered by their decrepitude. This was false and everybody knew it was false. In fact, the Court was very efficient and did its work in a timely fashion.The problem was not the lack of efficiency of the justices, it was the extreme conservatism of the justices. As Gardner puts it, 

“Neither the President’s message nor the Attorney General's letter [to Congress] contained a word of complaint about judicial tyranny; each was directed exclusively to the humanitarian goal of relieving aged men of their too heavy burdens."

Gardner, who had drafted the original version of the court-pack legislation, and several times met with the President, considered this "plunge into trickery" to be “deplorable." He referred to it as a “sleazy.” The Court was not overburdened. It was current with its work. Moreover, by stripping the “fallback”clause from Gardner’s draft, the new legislation would have produced a permanent complement of 15, injuring the courts productivity.

Gardner believed that an honest submission of the court packing plan, containing a fallback-to-nine proviso, would have been approved by Congress.

In any event, at the time of submission of the court packing plan to Congress, conservative Justice Owen Roberts flipped, and created a new 5–4 majority that sustained the ensuing New Deal legislation. It was, indeed, a “Constitutional Revolution.” The change, wrote Gardner, "exceeded in importance any Amendment in our history other than the Bill of Rights and the Civil War Amendments."

What prompted Justice Roberts’ altered view of the Constitution?  Gardner argues that Roberts’ change of heart actually came before the Justice was aware of the draft court pack legislation and was motivated by the overwhelming support of the President in the November 1936 election. (Roosevelt won in the electoral college by a vote of 523-9.) In any event, there is no direct proof that the court packing plan was or was not responsible for the “Revolution.”

Some “revolutions” are good “revolutions.” Which leads me to this conclusion:

A 6-3 majority of "textualists" and “originalists” would constitute a clear and present danger to the liberties we now enjoy. It is imperative that this be addressed by the Biden administration if it has a Senate majority. I would urge the immediate addition of four Justices with a fall-back to nine as Justices retire. This change is not a threat to our democracy.

The threat lies elsewhere.

A bientôt.

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Warner Gardner’s fascinating recollections of this historic era are published at 22 Green Bag 2d 219 and 22 Green Bag 2d 293. They are definitely worth your time.