Since court expansion is in the news, here's a quick historical note about "The Switch in Time That Saved Nine."
When FDR took office and began putting together the New Deal, he he knew that his presidency faced a Supreme Court with a solid conservative majority. In particular, it featured the "Four Horsemen," a clique of economic die-hards who almost never supported federal or state intrusion into the workplace. However, despite FDR's fears, nothing much happened during his first few years, perhaps because even the Horsemen understood the emergency posed by the Great Depression.
But in 1935 that changed. The Court sent down a flurry of decisions gutting various federal laws, the most important of which were a handful of provisions of the National Industrial Recovery Act, a cornerstone of the New Deal. FDR fumed, but NIRA was scheduled to expire soon anyway so he said little publicly. He then went on to win a landslide reelection on November 3, 1936.
Secure in this demonstration of his popularity, FDR began thinking about how to bring the Court to heel. Working in secret—which would prove to be a mistake—he eventually formulated a plan that would add a justice for every justice over 70. This would give him a reliable liberal majority.
FDR announced his plan on February 5, 1937. On March 29 the Court handed down its decision in West Coast Hotel v. Parrish, a case concerning a minimum wage law in Washington State. And guess what? One of the conservatives who often voted with the Horsemen switched to the liberal side and upheld the minimum wage. That vote change was the "switch in time," and since it doomed FDR's scheme it was said to have "saved nine."
But wait. Modern historians mostly agree that this isn't what actually happened. The Supreme Court held its conference on West Coast Hotel on December 19, 1936, nearly two months before FDR announced his court plan. That was when the vote switch happened, and since nobody knew at the time what FDR was up to, his threat to pack the court obviously had nothing to do with it.
The next big set of New Deal cases are referred to collectively as the Labor Board Cases. All of them were decided in the government's favor, but the conference for those cases was held on February 27, by which time it was pretty clear that the court packing scheme was already doomed. It's unlikely that FDR's threats influenced the vote.
And there's one more thing: the 1935 cases that so disturbed FDR were almost all unanimous. There was no reactionary minority thwarting the will of the people, it was the entire Court. Even the most liberal members agreed that certain features of the New Deal had simply gone too far.
The bottom line here is that the Court almost certainly revised its thinking all by itself. FDR's threats to its integrity had little or nothing to do with it. And a few months later one of the Horsemen retired and a couple of the others started to vote more liberally. FDR had the Court he wanted, and he would have gotten it even if he had done nothing.
POSTSCRIPT: And what's the lesson for today? I'm not sure there is one. It shows that threats didn't have any effect on the Court, but I don't think anyone believes that threats would have any effect on today's ideologues anyway. If you're going to pack the court, the only way to do it is to actually do it.
Aside from that it's just an interesting historical tidbit.
Rather then "packing" perhaps we should start talking about the need to reform the Article Three courts as there are real problems. More district judges, expand the Circuits to eighteen, expand the supremes to eighteen with term limits that eventually would have a seat opening up every year.
In the process make the rule of 80 mandatory which would put Alto, Thomas, and Roberts on senior status.
This seems like a great idea. So, naturally, conservatives will simply hate it. Another good reason to do it.
Ageism for the win.
That's a good point. Probably better to impose term limits, like 20 years. This would keep the court at least looking somewhat like the rest of the country. And no ageism.
I suspect the Law of Unintended Consequences would hold sway. The reduction in “dampening” of swings in the Court would end up cutting both ways.
Tell me that in general human mental capacity in unaffected by age. I'll wait.
I have to remember where I put my glasses first…
Term limits are explicitly unconstitutional. But some sort of defacto standard might be able to be cobbled together
Term limits or mandatory retirement age would require a constitutional amendment. What are the chances?
This is the big hurdle and practically speaking it's a prohibition on almost anything these days (it only takes 13 states to block, ie the former confederacy plus 2 could shoot down any proposals). But Congress can change the number of seats and some elements of the court's jurisdiction without needing any amendments. And theoretically might be able to legislate about a time limit for filling vacancies, but I don't know whether that could have any effect because it gets to internal procedures of the senate.
I think there might be bipartisan support for a law that both restricts the number of newly appointed SCOTUS judges to one per presidential term and requires the first vacancy in every term to be filled.
Limiting appointments to one per term would mean that you are counting on every justice serving for at least 36 years. I'm not sure that that's a good bet.
I think that threats would have an effect on the ideologues on the Court, but only if they were credible threats. For example, if the Democrats retained their majorities in 2023 and passed a law to codify Roe v. Wade, and at the same time passed a Court expansion bill in the House and let it rest in the Senate, with the understanding that the Senate would pass it into law if the Court ruled the abortion law unconstitutional, that might make a difference. I don't say that the Democrats can or actually would do this, but if they did, and the Court was convinced they would follow through, then it would have an effect.
And of course, there's the inevitable Mr. Dooley: "No matther whether th' constitution follows th' flag or not, th' Supreme Coort follows th' election returns."
IIRC what swayed some of the Horsemen to shift more was the Election of 1936 (when FDR and the Democrats won a massive victory) more than the Court Packing Scheme.
I think it's a little unfortunate that the mythos of FDR's court packing scheme dominates how we think about expanding the Court.
The Constitution gives these justices a lifetime appointment. The only checks it provides on the judiciary are: 1) Passing a constitutional amendment (extremely difficult), 2) impeachment (also unlikely), 3) jurisdiction stripping (which is messy and has limits), and 4) appointing new justices.
Now I get that the prospect of a 1000 member Supreme Court is kind of stupid, but lots of things laid out by the Constitution are kind of stupid (Electoral College?)
The question is, are we really comfortable waiting a minimum of 20 years (and more likely 50 years or longer) before we have a liberal court again? Do we really want to wait for a freak string of deaths to give women their autonomy again?
And do we really believe that if the court eventually does shift and conservatives are facing decades of liberal rule, they wouldn't use court packing? Do we really think they'll be shamed out of using that power?
We can't realistically fix the many broken parts of the Constitution, so we might as well use the tools it does provide us to advance our agenda. I would rather have the court swing every time a party gains control of Congress and the Presidency than not swing at all.
The constitution says next to nothing about the Supreme Court. Pretty much all it says is that a) there shall be one and b) justices shall serve on good behavior (translated to mean for life). There are a couple of arcane provisions about cases involving ambassadors going direct to the supreme court and that sort of thing but that's about it.
So the possibilities for reform are nearly endless other than absolutely eliminating the court or imposing term limits.
Stripping jurisdiction isn't hard, it's the easiest thing to do.
"This is the Left, sir. When the legend becomes fact, print the legend."
FDR was no "liberal". In term, there was no such thing outside propertarian/individual rights.
The main issue was FDR's populist policies and the Nazis influence on the administration, which was showing up with the NRA.
Follow the money: Justice Van Devanter, one of the more conservative Supreme Court justices, retired in June 1937, AFTER Congress restored full pensions for SC judges earlier that year - pensions that had been halved in 1932. Further retirements followed: Sutherland (January 1938), Brandeis (February 1939), McReynolds (January 1941), and Hughes (June 1941). Two other judges died during that period: Cardozo (July 1938) and Butler (November 1939). So within four years, FDR had the opportunity to nominate replacements for seven of the nine SC justices involved in the battle.
* https://www.politico.com/magazine/story/2019/02/24/the-lost-history-of-fdrs-court-packing-scandal-225201/
* https://en.wikipedia.org/wiki/List_of_justices_of_the_Supreme_Court_of_the_United_States
That there were Supreme Court rulings favorable to the New Deal before FDR *announced* his court plan doesn't mean the justices weren't motivated by a possible change in court structure.
Often there is something "in the air" for a year or two - essays, editorials, lower-ranked politicians talking about the subject - which affect justices' thinking. To make the date of FDR's announcement the dividing line omits a lot of historical details.
The supreme court needs to be enalrged to 30 - 50 members, to remove the impact of any specific appointment. Something like the 30 - 50 most seniorcircuit judges. Actual dicussions will be done by a sub-group of these, and then all of them vote.
Hmm, we could give every presidential term two appointments, and the Court has a fluid number of justices as a result. The Senate gets to confirm the lifetime appointments but without a timely hearing - a recess appointment as it were - would last 6 years.
So they can vote the guy down, but just not doing anything puts them on the court - for a while.