Pack the court!
round two...
Fresh off re-election Franklin Roosevelt moved to clear the last big roadblock standing in the way of his New Deal: the ‘nine old men’ on the Supreme Court. They had ruled a number of his measures (‘alphabet agencies’) unconstitutional. So he proposed, in February 1937, to appoint one new justice for every sitting justice over the age of 70, and to increase the number of federal judges.
The American people revolted and the Congress declined to pass the Court-packing legislation which Roosevelt had proposed. It may have helped that the Court had by then begun voting Roosevelt’s way (‘aswitch in time saves nine’). Roosevelt went on to appoint eight Supreme Court justices, eventually.
Donald Trump’s first 100 days in office are said to be the mirror image of FDR’s, now eliminating agencies and departments with the same hyperactivity and enthusiasm with which they were established. And with a supine Congress, there is the same base of resistance: the courts.
Many Americans are up in arms over the possibility that Trump will ignore federal judges and their decisions. He already has done. It’s easy to see this anger continuing and growing, for example, in a fight to ‘save Social Security’, whose rumoured annihilation provoked Roosevelt’s court-packing scheme in 1937. Now as then, cries of ‘dictatorship’ fill the air.
Dictators generally don’t like to rule in the absence of law, however. They prefer to rule under one law or another. Recall that Vladimir Putin called for a ‘dictatorship of law’.
Whether Trump succeeds in making himself emperor and pope, as FDR did with four electoral victories and a world war, or in staying stuck more or less at the level of Silvio Berlusconi, remains to be seen. He will likely continue to bully federal judges and big law firms and even law schools; and so long as they don’t unite against his bullying, he will continue to succeed in getting his way. But he is unlikely to defy the Supreme Court. He is much more likely to conquer them by packing. Democrats who have been urging Supreme Court reform for a long time may get their wish. -