The Presidential Commission on the Supreme Court, an executive panel established by President Joe Biden to study judicial reform amid growing calls to reign in a conservative supermajority established via Republican party trickery, issued its final report this month. The text, clocking in at 279 pages, offers historical context along with arguments for and against certain reform measures (expanding the number of justices, stripping areas of jurisdiction) but stops short of calling for any systemic changes.
Those who felt the commission was a mere academic exercise, a Band-Aid on a constitutional bullet hole, felt largely vindicated. But as law professors Samuel Moyn and Ryan D. Doerfler write in the Atlantic:
If the commission was intended to be the place where Court reform went to die, its effect in the long term may be the opposite. With calls to change the Court still very much alive, ideas that were once fringe have now moved to the center of Court discourse. And with radical action by the Supreme Court continuing in the coming years — likely starting with the overruling of Roe v. Wade but not stopping there — we may look back on the commission as helping to set reform in motion, rather than stopping it in its tracks.
That is to say, the fight for meaningful court reform will not necessarily end with the mere demise of a commission. A collective push for judicial change is needed, one that does not fizzle out when the law faculty meeting ends. The situation is too urgent.
Chief Justice John Roberts and associate justices Clarence Thomas, Samuel Alito, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett (all products of the modern conservative legal movement) are projected to “radically reshape the nation” with their pro-business, anti-regulatory jurisprudence. If we want to move toward social democracy, we need a court that uses the law to advance, not hinder, the welfare and protection of the poor and working class.
The judicial reform movement of the modern era is in what sociologists Charles Tilly and Sidney Tarrow define as the preliminary stage, one in which “people become aware of an issue and leaders emerge.” At this initiation point, history often acts as a guide. Regarding court reform, a similar moment exists: Franklin Delano Roosevelt’s attempt to restructure a conservative court and salvage the New Deal.
The story of Roosevelt’s effort to “pack the court” is often remembered in the popular imagination for the numerical rhyme associated with its conclusion: “the switch in time to save nine.” But the original court fight — one of direct presidential intervention, broad resistance, impassioned liberal messaging, and an ultimate, albeit lackluster, victory for progressive interests — offers a substantive case study in a fight to restructure a branch of American government that emphasizes a connection between implementing of social democratic measures and the law.
A Forceful Presidential Recognition
Congress is attempting to push through massive spending programs to aid working families in the aftermath of global financial upheaval. A conservative-leaning high court is expected to block measures meant to address widespread economic precarity. The year is 1937, and President Roosevelt, recognizing the judicial threat to his legislative agenda, delivers a fireside chat to millions of Americans, proposing the Judicial Procedures Reform Bill.
“This plan of mine” — the appointment of an additional justice for every sitting justice who was over seventy years old (six, in FDR’s case) — “is not attacking of the court,” the president’s voice crackled over radio speakers in homes across the country. “It seeks to restore the court to its rightful and historic place in our system of constitutional government and to have it resume its high task of building anew on the Constitution ‘a system of living law.’”
The plea to the American public came amid expected resistance from a powerful bloc of conservatives on the court. George Sutherland, Pierce Butler, James McReynolds, and Willis Van Devanter (a group dubbed “The Four Horsemen”), along with a right-leaning chief justice, Charles Evans Hughes, were, according to the president and his advisers, likely to strike down upcoming legislation including the establishment of Social Security and the National Labor Relations Board. (Their judicial kill list already included the Railway Pension Act and the National Industry Recovery Act.) Now, the five unelected officials serving for life were on the verge of denying the elderly a stable income and workers a collective bargaining tool in the post-Depression economy.
The expected conservative rulings were par for the course in terms of late-nineteenth- and early-twentieth-century jurisprudence. After the end of Reconstruction and during the Gilded Age, on behalf of the robber barons of the era, the court struck down attempts to disrupt the established order of inequality. Pollock v. Farmers’ Loan and Trust Co (1895), for example, rendered the first peacetime tax on income unconstitutional. But in 1937, the court’s lingering conservatism was hindering a presidential agenda.
“The courts,” FDR proclaimed via radio from the White House, “have cast doubts on the ability of the elected Congress to protect us against catastrophe by meeting squarely our modern social and economic conditions.” The broadcast amounted to an awesome use of the bully pulpit to underscore the need for a system of law that allowed the state to loosen the grip of laissez-faire attitudes.
Today, Biden finds himself in a similar position as he attempts to guide his party through the passage of massive social spending and regulatory measures in a postcrisis economy, alongside a court stacked with conservative justices appointed by the opposition. Measures in the Democrats’ reconciliation bill meant to address, for example, economic inequality (a wealth tax) and pending climate doom (higher regulatory scrutiny for carbon emitters) are seen as dead on arrival before a six-three conservative bloc — not to mention action on voting rights and labor protections, both curbed by another anti-democratic measure, the filibuster, but just as likely to be struck down by the current court.
The difference between then and now rests in the response: whereas FDR clamored for direct sweeping change, President Biden has not only failed to deliver a single major address on court reform — he refuses to take a clear stance on the Judiciary Act of 2021, a law that would, in part, add three justices to the bench.
A Message to Address Broad Resistance
John Nance Garner, a traditionally conservative Texan and FDR’s vice president, put a finger up to the bridge of his nose and pinched— his other hand gestured a thumbs down. The reaction came in response to the news of the president’s plan to restructure the court.
With widespread condemnation of the court-packing plan at hand, liberals of Roosevelt’s era took their case to the American people. One foot soldier was a young Lyndon Baines Johnson, then running in his first campaign for elected office. Standing before farmers of Texas’s Tenth Congressional District, Johnson told the agrarian downtrodden that their fates were all but linked with the court.
“John Miller,” Robert Caro quotes Johnson as saying in his biography of the eventual president, “didn’t you just now tell me you was going under when the soil conservation came in, and they started payin’ you to let your land lie out? Well, whose program is it that’s paying the farmers to let their land lie out?” Johnson answered his own question without pause: “Roosevelt’s program.”
He continued, “Take the CCC” — the Civilian Conservation Corps, a federal program putting hundreds of thousands of men to work on environmental conservation projects. “Now, it’s helping you, Herman.”
With a hostile court, Roosevelt’s programs, based on a broad interpretation of constitutional power that redefined and strengthened the government’s role in social and economic life, were at risk of being overturned. If the striking down of a law materialized, Johnson illustrated, it would impact you, the worker. And it wasn’t from a polished Washington dais, but from the ground on which the laborer toiled that Johnson laid out the benefits of passing the Judiciary Act.
The leaders emerging in the modern judicial fight should note Johnson’s campaign tactic. Some on the progressive left have begun taking up the rhetorical mantle of judicial reform, albeit with room for improvement. This includes Representative Mondaire Jones, Democrat from New York, a vocal opponent of the court (“Our democracy has been under assault for decades, and the Supreme Court has dealt many of the sharpest blows,” he wrote on Twitter last year) and Representative Ro Khanna, Democrat from California, who spearheaded efforts to impose term limits on Supreme Court justices.
While the lawmakers’ efforts are a worthy starting point, they are also children of the Washington press release and social media punditry that is disconnected from the suffering of average Americans. Court-reform messaging needs to focus on the intersection of the court’s decisions and individuals’ material conditions — how current jurisprudence either halts or hinders tangible elements of a social democratic society.
Eventually, FDR’s message seemed to break through — perhaps not to the public at large (the scramble to restructure the third branch of government lasted less than six months) but to the court itself. Historians debate the ultimate reason the court fight ended. The simplest and most popular explanation lies at the heart of the rhyme associated with the saga, contending that the three court decisions favoring FDR involving minimum wage, Social Security, and the National Labor Relations Act, which came about once Justice Owen Roberts began voting with the more liberal justices, helped end the efforts to pack the court.
But there was another element at hand: a key conservative justice, Willis Van Devanter, decided to retire. Whatever the reason, FDR’s bottom-line objective — safeguarding progressive legislation from unfavorable judicial review — was successful.
But his ultimate goal — restructuring an institution in which measures meant to advance the general welfare of average Americans hinge on nine votes — failed. Today’s judicial reform movement has the opportunity to revive the fight for that goal.
Elements of FDR’s fight can be put to use today: the use of the bully pulpit to signal the gravity of the judicial emergency at hand and the dispatch of elected and campaigning officials to convey the benefits that a fairer judicial system would bring to voters, particularly low-wage workers. But the contemporary struggle to move toward a more social democratic court must last longer than the six months waged in the fight of 1937 — and can’t end in capitulation to establishment party forces.
It is unclear what direction the nascent movement to restructure the court will take after the demise of the presidential commission. Whatever the strategy, the Left should seize a moment in which judicial reform ideas are entering the mainstream and dominating portions of the political conversation for the first time since 1937. If we don’t, the court — an inherently anti-democratic institution currently stacked with right-leaning justices serving life terms — will continue to block measures meant to foster a more just, less exploitative society.