When I heard the accusation about “stacking the court” from Pence (at the VP debate) it rang a bell with me from the book by William Dallek I am currently reading, “Franklin Delano Roosevelt: A Political Life.” I knew that FDR had tried to “pack” the Supreme Court—-as Pence termed it. And FDR’s effort failed. “The whole New Deal went up in smoke as a result of the Supreme Court fight,” according to Dallek’s excellent book. The fight opened a divide in the Democratic Party alienating Roosevelt from some former allies and also alienating some Republican allies, like his Secretary of the Interior, Harold Ickes.
As Dallek said in his book, “Roosevelt’s effort to master the judiciary produced something of a pyrhhic victory. FDR’s expenditure of so much political capital on the Court battle forced him to approach other Congressional disputes with uncharacteristic restraint. Advancing new liberal reforms became a distant hope. The Court controversy, one contemporary observer said, sidetracked ‘much useful legislation that otherwise might have been put through.’”
FDR had a plan, which he tried to float as a way to alleviate the overloaded work schedule of the Court. His plan was to add 6 justices, one for every Justice who had served at least 10 years and failed to retire 6 months after turning 70. This would have allowed FDR to immediately appoint 6 new justices, bringing the total to 15. Although the exact number of Supreme Court Justices is not set by the Constitution, the number has been set at 9 since 1869.
FDR, in Fireside Chats (March 4 & 9, 1936) said “There is nothing novel or radical about this idea. It seeks to maintain the bench in full vigor.” He was obviously feeling apprehensive about the move, but he made it——unsuccessfully—-anyway.
All sorts of rhymes sprang up. Here is just one: “Ancient judges sat in the hall, Ancient judges due for a fall. Our country’s Great Leader thinks some younger men, would see that the court gave us justice again.”
Although 60 to 65% of voters were willing to elect FDR to an unprecedented 3rd term, 50% of those same voters opposed the plan to change the court’s make-up. “The issue touched off the worst congressional conflicts of his administration.” As Dallek put it (p. 280), “As someone with a progressive temperament and an adaptive personality that enabled him to accept that changing times meant adopting fresh ways of thinking about old problems, Roosevelt was impatient with politicians who doggedly clung to the past.”
So, things did not go well for one of the most famous Democratic presidents in history when he attempted to “pack the court.”
I began to wonder WHY Pence would specifically attack Harris on this idea, since it seemed quite obvious that it is the GOP who are trying to “stack the courts” and have, indeed, probably succeeded with their recent nomination of an arch Conservative to fill Ruth Bader Ginsberg’s seat. Did someone I didn’t know about suggest that the Dems might want to change the make-up of the Supreme Court?
I asked this question of Google and the answer was that Eric Holder had mentioned it (former Attorney General under Obama), but that didn’t mean the rest of the party had any plan or knew or approved of his remarks, whereas the GOP have been crowing about how many judges at all levels they have appointed and are attempting to appoint even now.
I began to wonder if and when there had been successful attempts to “pack the Supreme Court.” The answer is that it has happened 7 times in history. The first 3 times centered around the political reaction to the Revolution of 1800. The Court was reduced in size at that time from 6 to 5 to prevent Jefferson’s Democratic-Republican Party from filling a vacancy as the Federalist Party left office. Once Jefferson was firmly in power, the size was moved back to 6 justices, then to 7, so that Jefferson could appoint new justices. Over the next 30 years, efforts to expand the Court were denied, but President Andrew Jackson gained enough power to add 2 new Justices in 1837.
Lincoln increased the size to 10 to prevent judicial attacks on his war policies. After Lincoln was assassinated, Congress reduced the size of the court to 8, to prevent Andrew Johnson (the new president) from harming Congress’ Reconstruction efforts. Ulysses S. Grant added a justice to insure the overturning of a recent Court decision that invalidated the legal tender law that allowed the government to finance its war efforts.
Obviously, what one party does (the GOP right now) can be done by the opposing party when power shifts (tit for tat). At least, those attempts can be made. In FDR’s case, the attempt was made at a time when he was in his 2nd term and riding high, but his move still failed in 1936.
So, that is the history, in a nutshell, of the attempts to expand the Supreme Court.