FDR’s Court-Packing Attempt… A colossal fail when Democrats were principled.

 
by MARK HYMAN

Abrouhaha has erupted over President Donald Trump’s decision to forward a Supreme Court justice nominee to the Senate for confirmation. Democrats have threatened to pack the court if Democrats capture both the White House and the Senate in November. This would be the second such attempt in that past century. Eight decades ago, Democratic President Franklin Roosevelt attempted to pack the Supreme Court in retaliation for justices unanimously finding many of his programs unconstitutional.

When Roosevelt was elected president in 1932, he was joined by a super-majority of Democrats in each chamber of Congress. Democrats (including Farm-Labor Party and Progressive Representatives who caucused with the Democratic Party) held a 60–36 advantage in the Senate and an even more stunning 318–117 majority in the House from 1933–1935. Two years later, Democratic majorities increased to 70–25 in the Senate and 332–103 in the House.

These super-majorities made it very easy to enact the many programs associated with Roosevelt’s New Deal. Roosevelt’s theory, endorsed by Democratic majorities in Congress, was that government should be managing the economy instead of the free market, and that there should be a centralization of power in the presidency. The executive branch made proposals, which the legislative branch passed without any hesitation. However, the third branch of government also had a say.

The Supreme Court faced an astonishing number of court challenges to Roosevelt’s New Deal programs. The high court ruled many of these programs unconstitutional. On May 27, 1935, the Supreme Court struck down Roosevelt’s key construct, the National Industrial Recovery Act, on a day some referred to as “Black Monday.” It was not even a squeaker of a case. The court unanimously declared unconstitutional “not just the program but its entire system of minimum wages, maximum hours, and workers’ rights.”

The National Industrial Recovery Act was one of three significant court defeats that were announced on Black Monday. Roosevelt lost other cases both before and after Black Monday, in which Congress either ceded too much authority to the executive branch or allowed government to encroach on individual rights and economic freedoms.

During Roosevelt’s first term, the court also struck down as unconstitutional the Agricultural Adjustment, Guffey Coal, Railroad Retirement, and Bituminous Coal Conservation Acts. Never before had so many unconstitutional laws been struck down so quickly. Even reliably liberal Supreme Court Justice Louis Brandeis voted against sacred Roosevelt programs. He privately told Roosevelt aides: “Go back and tell the president that we’re not going to let this government centralize everything. It’s come to an end.” Roosevelt and Congress were enacting new programs at a phenomenal rate, matched only by the rate at which the judicial branch found them in violation of the Constitution.

During Roosevelt’s first term, the high court overturned Roosevelt-backed laws at ten times the traditional rate. By the end of 1935, Roosevelt was concerned that nearly all of his New Deal legislation would be found unconstitutional. His attacks on the Supreme Court became so unnerving that all nine justices, conservatives and liberals alike, boycotted his 1936 State of the Union address.

Roosevelt breezed through his 1936 reelection with ease. Not only was he returned to the White House for a second presidential term, but he was also the beneficiary of increased Democratic majorities. The majorities were so lopsided that it was as if there was not a single Republican in all of Congress. Democrats held a 79–17 edge in the Senate and a 347–88 majority in the House.

In the lame duck period between election day and inauguration day, Roosevelt formalized a scheme that would effectively eliminate the judicial branch as an impediment to his plans. His closest political confidants were aghast when they learned of his plan.

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