Not since the 1960s, when “Impeach Earl Warren” billboards dotted the rural landscape of the South, has a Supreme Court been the object of such scorn and ridicule.
As the court readies itself for the “first Monday in October,” the traditional start of its fall term, it finds itself in the crosshairs of an effort to discredit and intimidate its conservative majority. Like President Franklin D. Roosevelt’s effort to pack the court when its conservative majority frustrated his New Deal proposals, congressional critics have threatened to alter the current composition of the court.
Roosevelt proposed his changes on Feb. 5, 1937, two weeks after his second inaugural address. He asked Congress for the authority to appoint an additional justice to the court, up to six, for each sitting justice who failed to retire at the age of 70 1/2. The reaction was swift. His bill was held up in a Senate Judiciary Committee run by his own party, and within 168 days, it was dead.
While the past should be prologue, it has not yet deterred promises by some prominent presidential aspirants to follow in FDR’s stead. Sen. Kamala Harris, D-Calif., has said, as has Sen. Elizabeth Warren, D-Mass., that she’s “absolutely open” to increasing the number of justices on the court. Sen. Bernie Sanders, I-Vt., on the other hand, prefers “rotating justices” onto “other courts,” a proposal that has its own constitutional deficiencies.
But their collective goal remains the same. As Jeff Shesol noted in his excellent book on the subject, “Supreme Power,” Franklyn Waltman Jr., then writing for The Washington Post, observed that “[F]or all its suavity and argumentative skill, [FDR’s announcement] does not conceal that Mr. Roosevelt’s real objective is to make the Supreme Court amenable to his will.”
Of the leading candidates, only former Vice President Joe Biden does not propose alteration of the composition of the court.
Attacks on this court are not new.
On Jan. 21, 2010, the court, by a 5-4 vote, handed down its opinion in Citizens United v. Federal Election Commission. This decision rendered unconstitutional, on First Amendment grounds, the Bipartisan Campaign Reform Act’s ban on independent expenditures in favor of political candidates within 30 days of a primary and 60 days of a general election.
Six days later, on Jan. 27, President Barack Obama delivered his State of the Union address. Sitting directly in front of him, dressed in their black robes with their hands folded in their laps as apolitical guests of the Congress, were justices of the Supreme Court.
Obama then proceeded to scold them, charging that the court’s majority had “reversed a century of law” by “open[ing] the floodgates for special interests — including foreign corporations — to spend without limit in our elections.” He then added that their decision would allow elections to be “bankrolled by America’s most powerful interests, or worse, by foreign entities.”
It’s worth noting that Obama’s characterization of the opinion was factually incorrect, and Justice Samuel A. Alito Jr. could be seen shaking his head and mouthing the words, “Not true, not true.” In fact, the court’s holding did not authorize direct corporate contributions to candidates and it did not authorize “foreign entities” to take part in our elections.
Obama then urged Congress to “pass a bill” to override it, even though he should have known that a constitutional holding, as this one was, cannot be overridden by statute.
In 2012, Obama took another shot at the court, saying that if it ruled against Obamacare, it would be an act of “judicial activism” because, he argued, the court had no right to overrule a law that had been “passed by a strong majority of a democratically elected Congress.” In the wake of that veiled threat, many believe that Chief Justice Roberts voted in favor of the legislation to keep the court out of the spotlight during the 2014 campaign.
If so, he has been unsuccessful.
On Aug. 12, five Democratic senators — Dick Durbin of Illinois; Richard Blumenthal of Connecticut, Mazie Hirono of Hawaii and Kirsten Gillibrand of New York, led by Sheldon Whitehouse of Rhode Island — took the court to task in a remarkable amicus brief opposing the granting of a writ of certiorari in a Second Amendment case. Claiming the court is motivated by politics, Whitehouse said that it should “heal itself” before Congress does it for them.
As we begin the approach to the 2020 primaries and the general election to follow, the Congress and the court’s critics would also be wise not to overreach.