When confronted with FDR’s legislative proposal to expand and pack the Supreme Court with more sympathetic, pro-New Deal justices, U.S. Senator Henry F. Ashurt, the chair of the Senate Judiciary committee, replied “No haste, no hurry, no waste, no worry” and delayed the hearings, marking an essential check by Congress on the Roosevelt White House’s attempt to usurp control of the judiciary for its own political ends. Per the Constitution, the judicial branch is largely a non-partisan institution that adjudicates legal disputes rather than political ones. However, Republican and Democratic legislators, by engaging in ceaseless bickering of a highly volatile nature over the nomination, confirmation process, and credentials of highly-qualified federal judges such as Merrick Garland and Amy Barrett, have suborned the judicial branch to their own partisan designs. In doing so, they have also denigrated the Court’s institutional integrity as well as the original purpose for which it was founded.
In this article, I will present a historical overview of the U.S. Supreme Court’s original creation and purpose, the historical precedent upon which the modern Progressive movement’s proposal of court-packing is based, and argue as to why both parties are responsible for the continued politicization of the judicial branch at this vital turning point in its history. While Democrats believe that packing the Supreme Court is a necessary step in restoring balance to a judicial system supposedly overpopulated with Republican appointees, it is actually a dangerous one that threatens to undermine the very cornerstone of judicial independence and legitimacy.
The Original Purpose and Creation of the Judiciary
In the newly ratified U.S. Constitution of 1789, Article III provided for an independent judiciary with a Supreme Court at its helm that would possess “the power to interpret the law of the United States.” The separation of powers system etched within the Constitution’s text owed its influence to the most prominent paradigm of Roman and Greek political theory: that the most ideal version of government would be the one in which three different branches would check and balance each other. However, even the Framers remained divided over the role and relevance of the judicial branch in the early American political process. Alexander Hamilton, the leader of the Federalist Party, believed that the courts of justice should engage in an expansive interpretation of the Constitution to lend the federal government vast powers beyond those stipulated in the document’s text. His rival Thomas Jefferson believed in a strict constructionist approach in which the courts would provide a limited constitutional interpretation of the federal government’s powers since “to consider the judges as the ultimate arbiters of all constitutional questions is a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy.”[1]
Even during the days of the early American republic, the judiciary was not exempt from the political intrigue and machinations that characterized the interactions between the Federalists and Democratic-Republicans. After his defeat in the election of 1800, US president John Adams appointed several judges to the lower courts before his departure from office, but his successor Thomas Jefferson refused to deliver their commissions, throwing the legitimacy of their appointments into question. In Marbury v. Madison, the Supreme Court case which addressed the issue of whether one of the judges was entitled to his commission, the Court found that it had the right to review and strike down laws contrary to the Constitution.
Famous judges like Oliver Wendell Holmes or his disciple Felix Frankfurter, by abiding to and exercising the prerogative of judicial restraint, have correctly avoided striking down legislation passed by Congress or overturning years of case law so as to keep the judiciary above the political fray and immune from politically oriented criticism. It was this line of reasoning that guided Chief Justice John Robert’s majority opinion in National Federation of Independent Business v. Sebelius, in which he upheld the constitutionality of the Patient Protection and Affordable Care Act. An institutionalist to his core, Roberts understood the dangers of veering into judicial activism and the damage that would be dealt to the Supreme Court’s reputation if he dismantled the signature legislative achievement of the Obama presidency. In response to criticism from President Trump regarding the decision of one federal judge, Roberts replied “We do not have Obama judges or Trump judges.” Quite frankly, the court-packing proposal advanced by modern progressives is a radical measure that threatens to upset the non-partisan image of the Court that has been painstakingly crafted by distinguished jurists over the centuries.
FDR’s Court Packing Plan
The Judicial Procedures Reform Bill of 1937, spearheaded by U.S. president Franklin D. Roosevelt, proposed to add more justices to the U.S. Supreme Court after the Court had previously struck down several of his New Deal laws as unconstitutional. Through this bill, Roosevelt, according to contemporary observers, hoped to remake the judiciary into an institution more sympathetic to his New Deal legislative agenda. In a fireside chat in March 1937, Roosevelt justified such an approach, arguing that the Court had set itself up as a “third House of the Congress—a super-legislature” by continually striking down his New Deal program.[2] The bill itself contained four main provisions: the most important one stipulated that the president could appoint an additional justice for every justice over the age of 70 currently sitting on the Court. While the Supreme Court ultimately began to uphold various pieces of New Deal legislation, Congress put an end to Roosevelt’s scheme by delaying the hearings until an entirely revised bill had emerged out of the judiciary committee.
Even though it never achieved its ultimate objective of adding justices to the Court, the reform bill marked the first significant attempt by an American president to fundamentally alter the make-up of the federal judiciary for his own political gain. This fight also inflicted severe costs upon Roosevelt’s legislative program; in fact, FDR wasted much of his political capital on this issue rather than on other New Deal programs. In one of his speeches, Chief Justice William Rehnquist commented on the unique irony of the court-packing debacle, observing that “it was the United States Senate – a political body if there ever was one – who stepped in and saved the independence of the judiciary.”[3] Although it was intended to unify the three branches of the federal government behind Roosevelt’s New Deal platform, the court-packing plan evoked the very opposite: it further inflamed tensions between Republicans, Democrats, and even FDR’s most loyal supporters while engendering further opposition to the Roosevelt administration. By invoking a court-packing proposal while remaining intentionally blind to the historical nature of its origins, Democrats are willing to politicize the judiciary to the point of no return.
The Blame Game
Although federal judicial nominees had enjoyed a smooth and swift confirmation process to the bench before the Reagan presidency, an exception arose when President Reagan nominated Judge Bork to a vacancy on the Supreme Court in 1987. While no one disputed Bork’s credentials, the Democrats rejected his nomination due to his apparent willingness to overturn years of legal precedent involving civil rights case law. The Bork hearings marked a watershed moment in the history of the nomination and confirmation process for federal judges. While a judge’s judicial ideology is certainly an important factor in the selection process for nominees to the bench, it has now come to enjoy a disproportionate level of influence in comparison to a variety of many other equally important factors.
After the death of Associate Justice Antonin Scalia in 2016, President Obama’s attempt to appoint Judge Merrick Garland to the vacancy was rejected by Senate Republicans, who maintained that it would be the best for the voters to decide on the vacant seat through their selection of a new president in 2016. By being so quick to tie a Supreme Court vacancy to the outcome of a presidential election while hindering the efforts of a sitting president to find a qualified candidate, Republicans are also responsible for the judiciary’s politicization. They also set a precedent that Democrats were able to exploit; when President Trump nominated Judge Barrett to the Court, the Democrats argued that it would be similarly unfair to voters in the 2020 election if they could not influence the confirmation process through their selection of the incoming president. Even before 2016, Republican Senate Majority Leader Mitch McConnell resisted the Obama Administration’s attempts to fill vacancies on the lower courts instead of working with the Democrats to find highly qualified appointees. At various points, both parties, Republicans during the 2016 Gorsuch nomination and Democrats in 2013 for Obama’s lower court nominees, have also utilized the nuclear option to push their appointees forward, which has further destabilized the confirmation process.
This tit for tat exchange between Democrats and Republicans has emerged into a dangerous trend that has compromised the legitimacy and integrity of the confirmation process and by extension the entire judicial branch. As a devout Justice Scalia fan who wrote my college thesis on his theory of textual originalism, one of the traits that I most admired about him was his friendship with Justice Ruth Bader Ginsburg, who was very much his ideological opponent. If Republicans and Democrats were to similarly cooperate in such a bipartisan fashion without haste or hurry in regard to the selection and appointment of federal judges, there may still yet be hope for the health, stability, and independence of the American court system in the years to come.
[1] “From Thomas Jefferson to William Charles Jarvis, 28 September 1820,” Founders Online, National Archives, https://founders.archives.gov/documents/Jefferson/98-01-02-1540.
[2] Franklin D. Roosevelt, Fireside Chat. Online by Gerhard Peters and John T. Woolley, The American Presidency Project https://www.presidency.ucsb.edu/node/209434
[3] Rehnquist, William H. (2004). “Judicial Independence Dedicated to Chief Justice Harry L. Carrico: Symposium Remarks”. University of Richmond Law Review. 38: 579–596 [595].