Opinion - Court packing: Repeating history’s unconscionable mistakes

by Brenee Goforth

A national pandemic. New minimum wage standards. Calls for a “New Deal.” 

If you didn’t know any better, you might think I was referring to early 20th Century America —when the flu ravaged the nation and President Franklin D. Roosevelt passed unprecedented progressive policies seemingly every day.  

But no. The events of recent years have revived countless struggles from our past, and this year’s election cycle put the worst of them on prominent display. Among the lowest are renewed calls for court packing from the left. The death of long-time Supreme Court Justice Ruth Bader Ginsburg and subsequent appointment of Amy Coney Barrett has, in many liberal lawmakers’ eyes, put an unacceptable number of conservative justices on the bench. Their solution? Pack the court. 

That’s a very bad idea. 

More than 80 years ago, after FDR was tired of seeing his New Deal legislation struck down by the conservative Supreme Court, he proposed the “Judicial Procedures Reform Bill of 1937.” This bill intended to push through enough yes-men liberal justices to outnumber the conservatives on the bench — ensuring the safety of FDR’s progressive legislation. But his proposal came back to bite him when Americans widely criticized FDR’s plan. Political cartoons depicted Roosevelt as a ventriloquist, with his liberal justices as wooden puppets. The Senate Judiciary Committee at the time called it “a proposal that violates every sacred tradition of American democracy.” And his attempt to manipulate the judicial branch went on to be known as one of the most corrupt attempts to subvert the Constitution in history. 

One reason this tactic was (until recently) universally rejected is its degradation of public trust in our courts. By so unabashedly exposing their desire to use the courts as a political plaything rather than a necessary check on power, the left endorses and further popularizes the view of judicial appointments as political weapons and the courts as nothing more than a veneer of justice — pushing through whatever lawmakers want while putting up a façade of legal review. In 1945, TheDaily Times-News  of Burlington, N.C., recognized the damage FDR’s court packing attempts had on public trust, writing, “Mr. Roosevelt’s assault on the courts did greater violence to the spirit of our institutions than any act in American history, except Civil War.” 

Ginsburg, who progressives claim to champion, warned of the irreparable danger of court packing, stating, “If anything would make the court look partisan, it would be that — one side saying, ‘When we’re in power, we’re going to enlarge the number of judges, so we would have more people who would vote the way we want them to.'” 

Many have speculated FDR’s proposal for rigging the courts was not, however, designed to be successful at all. In 1937, The Daily Times-News correspondent Rodney Dutcher wrote, “Roosevelt never expected or intended to have his court bill passed, but was only trying to scare the conservative justices so they wouldn’t dare kill any more New Deal legislation.” If that is true, it certainly worked. After the bill was introduced, Justice Owen Roberts flipped his vote in the progressives’ favor upholding a state minimum wage law. And after that, the Supreme Court never struck down another piece of New Deal legislation again. Similarly, if the goal of Democrats today is to spook the court into submission, that could be effective. After all, the court in October ruled against a Wisconsin measure that would allow absentee ballots to be counted six days after the election. But, after lawmakers like Alexandria Ocasio-Cortez began publicly calling for court packing, the court seemingly changed pace and ruled North Carolina could count absentee ballots for as many as nine days after the election. Unfortunately, by all appearances, FDR was gravely serious, as well are the progressives of today. 

Court packing is an underhanded practice that overtly politicizes an arena that should not be political — our judicial system. Not only is the matter unconscionable, but it would likely be politically ineffective as well. If Democrats push through court packing legislatively, they will have set the stage for Republicans to do the exact same when they regain the congressional upper hand. The last thing America needs is the court to become an ever-expanding political tit-for-tat. So, while threatening court packing could potentially be politically expedient, actually passing court packing legislation would certainly not be. 

The Senate Judiciary Committee said it best in 1937, “[Court packing] is a measure, which should be so emphatically rejected that its parallel will never again be presented to the free representatives of the free people of America.”  

Unfortunately, their prediction was wrong. Americans are being presented with this proposal again, but it’s our duty as honest citizens to loudly and emphatically reject it. Let us not repeat history’s mistakes. 

Brenée Goforth is the marketing and communications associate at the John Locke Foundation.