THERAPEUTICS FOR THE SUPREME COURT MALAISE

 

I surrender.  Set out below, sans graphics, is the piece submitted and published in the NYLJ.

My esteemed partner Mark Alcott has written an essay (NYLJ, 10/29/20) in which he argues that all the current proposals for Supreme Court reform are "ineffectual, unconstitutional, or just plain terrible.” He is wrong: none of those adjectives applies to a plan to enlarge the court.

The current vote count suggests that Biden may be in the White House, but Republicans will maintain a slim majority in the Senate. On the theoretical possibility that two or three Republican senators will be repulsed by ultra-reactionary rulings of the 6-3 majority of the Supreme Court, examination of my friend’s objections to a court pack plan is still relevant.

For openers, he says the court pack idea is "deeply unpopular.”

“Deeply unpopular”? 

With whom? Democrats favor it 57% - 28%. And that is from a poll taken before the outrageous Barrett hearings and confirmation. No surprise, the idea is anathema to Republicans, who backed to the hilt the Garland/Barrett disgrace—the Republican version of manipulating Court membership.

Next, Mark writes that proposing a court pack plan would “Inflict severe damage on Biden, just as it did to FDR”. He bases that conclusion upon the opinion of journalist/historian Lynn Olson whom he quotes as having written that Roosevelt’s failed court-pack plan was "the biggest mistake of his presidency," and “merely by advocating it, the president wound up undercutting his influence and authority and severely damaging his administration, the country, and the world for years to come.’’

I admire Lynne Olson almost as much as I admire Mark Alcott, but what was she smoking when she wrote that?

Lets break down the Olson quote item by item:

FDR’s “biggest mistake.” Really?

The conventional history is that merely by proposing the plan, FDR effected a 180 degree reversal of the Court’s earlier rulings that major elements of the New Deal, such as aid to farmers, wage and price controls, social security, the NRA, etc., were all unconstitutional. That switch helped lift the country out of the Great Depression. Some mistake! 

Indeed, it is not altogether clear why FDR’s plan failed. History books often ascribe the reason for the failure as the alleged unpopularity of the idea of enlarging the court. 

But the author of the plan, Warren Gardner, the lawyer in the Solicitor General’s office who drafted it and argued with the President (unsuccessfully) for his “lighter” version of it, believed otherwise. (Gardner would have added four Justices, with an eventual fall-back to nine. The plan FDR submitted to Congress would permanently establish the ceiling at fifteen.)

Percipient witness Gardner has written that the president and his attorney general also seriously blundered by misrepresenting to Congress the reasons for their proposal. The legislators recognized the deception and rebelled. Gardner believes that the plan would have succeeded but for those two political errors.

Justice Owen Roberts never disclosed the reason for his historic reversal that ultimately led the court to undo its earlier anti-New Deal rulings. But the evidence suggests that the court pack plan had nothing to do with the switch  that so dramatically reversed the course of history. Gardner was there, and notes that Roberts’ pivotal vote was likely cast before he even knew of the court pack proposal. What persuaded Roberts, — and later, others on the court, — to abandon their unlabeled “originalism” was their recognition of the overwhelming popularity of FDR, who won the 1936 election by an electoral vote of 523-9.

(Percipient witness Warren G. Gardner went on to co-found the distinguished Washington D.C. law firm of Shea & Gardner. The sources and further details of Gardner’s first-person recounting of this historic chapter of United States history are set out in my blog of October 16, see “PACKING THE COURT—REVISITED,” at https://londonsbh.blogspot.com/ )

The bottom line is that the effect of FDR‘s court packing plan upon the court’s reversal is unclear. While evidence suggests the plan had zero effect on the court’s ruling, if it did have an effect, it was a positive one: The Roberts – led switch dramatically enhanced lives of the citizenry.

Next, Olson opines that FDR’s court-pack proposal “undercut [FDR’s] influence.” Huh? After the 1937 switch, FDR led Congress to pass court-sustained laws that dramatically lifted the economy, including social security, paper money, aid to farmers, wage and price laws, and the balance of the New Deal legislation. And the measure of FDR’s “influence” is marked by his unprecedented 1940 election to a third term (449-82) and fourth term in 1944 (432-49.) That hardly seems like diminished influence to me. In any event, I would be happy to see Biden so burdened.

 Olson’s final mis-statement is that FDR’s court-pack plan “damaged his administration, the country, and the world for years to come.” 

That sounds like something Donald Trump would say. We are, after all, talking about a president whose administration pulled the country out of the Great Depression, led the country to victory in World War II, and planned for a United Nations post-war system that, with all its faults, was an effort to avoid future wars. 

Further, my brother Alcott argues that a pack plan will end up in a seesaw, with the court being enlarged again and again as administrations change. There is no historical support that claim. The size of the court has changed seven times since 1787, ranging from 6 to 10. The most “political’ change was an 1863 “mini-pack’’ by Abraham Lincoln who led Congress to increase the size of the court to ten, to be sure he had a comfortable majority to support his war efforts and the post Civil War constitutional amendments to come. After Lincoln's assassination, and it became clear how awful president Andrew Johnson was, Congress politically castrated him by reducing the size of the court to six ( by attrition) in order to prevent him from making any appointments at all. Once rid of Johnson, they raised the number back to nine. Politics? Sure! But despite all the political changes in the ensuing 150 years, the number has remained at nine.

Next, my partner suggests the way to deal with Mitch McConnell's bad faith manipulation of the court selection process is to re-impose the 60% filibuster rule. Among other faults, that proposal ignores the history of how we got here. Let's remember, please, that the Senate is not a perfectly representative body, given the enhanced weight of the smaller, less populated red states. That helped make it possible for the Republicans to use the filibuster rule to block Obama appointments even when the Democrats had a Senate majority, so the Democrats abolished the rule for court confirmation votes. 

Along with the Garland/Barrett hypocrisy, that is the setting for this conflict. As I see it, even assuming the now-unlikely result of a Democrat Senate majority, reinstating the filibuster would simply give minority leader McConnell the power he now enjoys as Majority Leader McConnell. And we now know for sure how he and his followers would exercise that power. The suggestion that restoration of the filibuster rule would encourage unanimous confirmation votes is just whistling in the dark.

Finally, Alcott fears we are “destroying the court to save Roe v. Wade.” The opposite is true. To quote former Reagan Solicitor General Charles Fried, enlarging the court is really about preventing the conservative six-person majority from “taking a wrecking ball to generations of Supreme Court doctrine—and not just in matters of reproductive choice.”

Risks? For sure. But the Republicans’ partisan manipulation of the court selection process over the last twelve years prompts another quote from Professor Fried’s pro-pack argument recently published in the Times:

“To paraphrase Churchill, such a maneuver is a bad idea, except for all the alternatives.”

A sensible court pack plan is hardly a vaccination against bad faith political leadership, but it does provide a dose of therapeutics for the current malaise.

.........................................

My esteemed partner Mark Alcott has written an essay (NYLJ, 10/29/20) in which he argues that all the current proposals for Supreme Court reform are "ineffectual, unconstitutional, or just plain terrible.” He is wrong: none of those adjectives applies to a plan to enlarge the court.

The current vote count suggests that Biden may be in the White House, but Republicans will maintain a slim majority in the Senate. On the theoretical possibility that two or three Republican senators will be repulsed by ultra-reactionary rulings of the 6-3 majority of the Supreme Court, examination of my friend’s objections to a court pack plan is still relevant.

For openers, he says the court pack idea is "deeply unpopular.”

“Deeply unpopular”? 

With whom? Democrats favor it 57% - 28%. And that is from a poll taken before the outrageous Barrett hearings and confirmation. No surprise, the idea is anathema to Republicans, who backed to the hilt the Garland/Barrett disgrace—the Republican version of manipulating Court membership.

Next, Mark writes that proposing a court pack plan would “Inflict severe damage on Biden, just as it did to FDR”. He bases that conclusion upon the opinion of journalist/historian Lynn Olson whom he quotes as having written that Roosevelt’s failed court-pack plan was "the biggest mistake of his presidency," and “merely by advocating it, the president wound up undercutting his influence and authority and severely damaging his administration, the country, and the world for years to come.’’

I admire Lynne Olson almost as much as I admire Mark Alcott, but what was she smoking when she wrote that?

Lets break down the Olson quote item by item:

FDR’s “biggest mistake.” Really?

The conventional history is that merely by proposing the plan, FDR effected a 180 degree reversal of the Court’s earlier rulings that major elements of the New Deal, such as aid to farmers, wage and price controls, social security, the NRA, etc., were all unconstitutional. That switch helped lift the country out of the Great Depression. Some mistake! 

Indeed, it is not altogether clear why FDR’s plan failed. History books often ascribe the reason for the failure as the alleged unpopularity of the idea of enlarging the court. 

But the author of the plan, Warren Gardner, the lawyer in the Solicitor General’s office who drafted it and argued with the President (unsuccessfully) for his “lighter” version of it, believed otherwise. (Gardner would have added four Justices, with an eventual fall-back to nine. The plan FDR submitted to Congress would permanently establish the ceiling at fifteen.)

Percipient witness Gardner has written that the president and his attorney general also seriously blundered by misrepresenting to Congress the reasons for their proposal. The legislators recognized the deception and rebelled. Gardner believes that the plan would have succeeded but for those two political errors.

Justice Owen Roberts never disclosed the reason for his historic reversal that ultimately led the court to undo its earlier anti-New Deal rulings. But the evidence suggests that the court pack plan had nothing to do with the switch  that so dramatically reversed the course of history. Gardner was there, and notes that Roberts’ pivotal vote was likely cast before he even knew of the court pack proposal. What persuaded Roberts, — and later, others on the court, — to abandon their unlabeled “originalism” was their recognition of the overwhelming popularity of FDR, who won the 1936 election by an electoral vote of 523-9.

(Percipient witness Warren G. Gardner went on to co-found the distinguished Washington D.C. law firm of Shea & Gardner. The sources and further details of Gardner’s first-person recounting of this historic chapter of United States history are set out in my blog of October 16, see “PACKING THE COURT—REVISITED,” at https://londonsbh.blogspot.com/ )

The bottom line is that the effect of FDR‘s court packing plan upon the court’s reversal is unclear. While evidence suggests the plan had zero effect on the court’s ruling, if it did have an effect, it was a positive one: The Roberts – led switch dramatically enhanced lives of the citizenry.

Next, Olson opines that FDR’s court-pack proposal “undercut [FDR’s] influence.” Huh? After the 1937 switch, FDR led Congress to pass court-sustained laws that dramatically lifted the economy, including social security, paper money, aid to farmers, wage and price laws, and the balance of the New Deal legislation. And the measure of FDR’s “influence” is marked by his unprecedented 1940 election to a third term (449-82) and fourth term in 1944 (432-49.) That hardly seems like diminished influence to me. In any event, I would be happy to see Biden so burdened.

 Olson’s final mis-statement is that FDR’s court-pack plan “damaged his administration, the country, and the world for years to come.” 

That sounds like something Donald Trump would say. We are, after all, talking about a president whose administration pulled the country out of the Great Depression, led the country to victory in World War II, and planned for a United Nations post-war system that, with all its faults, was an effort to avoid future wars. 

Further, my brother Alcott argues that a pack plan will end up in a seesaw, with the court being enlarged again and again as administrations change. There is no historical support that claim. The size of the court has changed seven times since 1787, ranging from 6 to 10. The most “political’ change was an 1863 “mini-pack’’ by Abraham Lincoln who led Congress to increase the size of the court to ten, to be sure he had a comfortable majority to support his war efforts and the post Civil War constitutional amendments to come. After Lincoln's assassination, and it became clear how awful president Andrew Johnson was, Congress politically castrated him by reducing the size of the court to six ( by attrition) in order to prevent him from making any appointments at all. Once rid of Johnson, they raised the number back to nine. Politics? Sure! But despite all the political changes in the ensuing 150 years, the number has remained at nine.

Next, my partner suggests the way to deal with Mitch McConnell's bad faith manipulation of the court selection process is to re-impose the 60% filibuster rule. Among other faults, that proposal ignores the history of how we got here. Let's remember, please, that the Senate is not a perfectly representative body, given the enhanced weight of the smaller, less populated red states. That helped make it possible for the Republicans to use the filibuster rule to block Obama appointments even when the Democrats had a Senate majority, so the Democrats abolished the rule for court confirmation votes. 

Along with the Garland/Barrett hypocrisy, that is the setting for this conflict. As I see it, even assuming the now-unlikely result of a Democrat Senate majority, reinstating the filibuster would simply give minority leader McConnell the power he now enjoys as Majority Leader McConnell. And we now know for sure how he and his followers would exercise that power. The suggestion that restoration of the filibuster rule would encourage unanimous confirmation votes is just whistling in the dark.

Finally, Alcott fears we are “destroying the court to save Roe v. Wade.” The opposite is true. To quote former Reagan Solicitor General Charles Fried, enlarging the court is really about preventing the conservative six-person majority from “taking a wrecking ball to generations of Supreme Court doctrine—and not just in matters of reproductive choice.”

Risks? For sure. But the Republicans’ partisan manipulation of the court selection process over the last twelve years prompts another quote from Professor Fried’s pro-pack argument recently published in the Times:

“To paraphrase Churchill, such a maneuver is a bad idea, except for all the alternatives.”

A sensible court pack plan is hardly a vaccination against bad faith political leadership, but it does provide a dose of therapeutics for the current malaise.

...................................

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