We must defend American institutions and the Constitution against these so-called reforms and tell President Biden, Hands off the Supreme Court.
President Joe Biden recently proposed a series of reforms to the United States Supreme Court. The President and Democrats are furious over not only recent decisions rendered, but also by the conservative direction the Court has taken. As a result, Democrats and progressives are demanding that the Court be reformed. However, “reform,” should be be translated as a renewed court packing scheme.
President Biden is arguing that the Court has not only “overturned long-established legal precedents protecting fundamental rights,” but also “gutted civil rights protections.” Further, President Biden is arguing that his Court reforms are a defense of democracy and meant to protect the rule of law.
The proposed reforms include establishing a binding code of ethics for Supreme Court Justices, implementing an 18-year term limit for Justices to serve, and calling for a constitutional amendment that would prohibit a president from receiving immunity from a crime while in office.
President Biden’s proposed 18-year term limit also opens the door for a future president to pack the Court. In his term limit proposal, President Biden is arguing that a president should have the ability to appoint a new Justice to the Supreme Court every two years. President Biden is not only ignoring why the Founding Fathers intended the Judiciary to be independent, but also for Justices to serve lifetime appointments.
The threat of packing the Supreme Court should alarm every American because it threatens the very foundations of our constitutional republic. Democrats are following the path of President Franklin D. Roosevelt (FDR), who in 1937 attempted to pack the Supreme Court.
In the presidential election of 1936 President Roosevelt routed the Republicans in a landslide victory. President Roosevelt interpreted his reelection victory as a mandate to continue his New Deal reform programs to combat the Great Depression. Nevertheless, President Roosevelt was frustrated because the Supreme Court struck down several prominent New Deal programs, most notably the Agricultural Adjustment Act (AAA) and the National Industrial Recovery Administration (NRA).
Roosevelt was especially angry with the four conservative Justices of the Supreme Court who he referred to as the “four horsemen of the apocalypse.” The conservative Justices included Willis Van Devanter, James McReynolds, Pierce Butler, and George Sutherland. Chief Justice Charles Evans Hughes and Justice Owen Roberts often joined with the conservatives to strike down New Deal laws. It was not always just the conservatives deciding to invalidate New Deal laws. For example, the entire Hughes Court agreed that the NRA was unconstitutional.
President Roosevelt decided to utilize the political capital he had won in the 1936 election by proposing to reorganize the judicial branch. Roosevelt argued that reforming the Court was necessary because the “nine old men” could not keep up with the caseloads and the judiciary needed to “modernize.” Further, Roosevelt argued that the judiciary was “handicapped by insufficient personnel with which to meet a growing and more complex business.”
The goal of Roosevelt’s judicial reorganization was not to modernize the judicial branch but it was an attempt to prevent the Supreme Court from blocking further New Deal reforms. Progressives argued that the Constitution was a “living” document that evolved with the times. Roosevelt even criticized the Supreme Court for using a “horse-and-buggy definition of interstate commerce” in declaring New Deal laws unconstitutional.
“This plan of mine is no attack on the Court; it seeks to restore the Court to its rightful and historic place in our Constitutional Government and to have it resume its high task of building anew on the Constitution ‘a system of living law,’ stated President Roosevelt.
Progressives argued that modern society demanded that the federal government move beyond constitutional limitations to solve policy problems. As Roosevelt stated:
Modern complexities call also for a constant infusion of new blood in the courts, just as it is needed in executive functions of the Government and in private business. A lowered mental or physical vigor leads men to avoid an examination of complicated and changed conditions. Little by little, new facts become blurred through old glasses fitted, as it were, for the needs of another generation; older men, assuming that the scene is the same as it was in the past, cease to explore or inquire into the present or the future.
At the heart of Roosevelt’s plan was to appoint a new Justice to the Supreme Court for every Justice over the age of 70. This would allow Roosevelt the ability to appoint six new Justices to the Court. In a “fireside chat” with the American people Roosevelt defended his plan by arguing that he wanted an “independent judiciary” and a Supreme Court that “will enforce the Constitution as written…”
“We have, therefore, reached the point as a nation where we must take action to save the Constitution from the Court and the Court from itself,” explained Roosevelt. The President also argued that Congress had the constitutional authority to determine the number of Justices on the Supreme Court.
The Court reform plan was one of the most radical measures proposed by President Roosevelt. The plan was not a legitimate reform of the judiciary, but an attempt to pack the Supreme Court with Justices who would be sympathetic to Roosevelt’s New Deal agenda. Roosevelt was soon confronted with opposition to his court packing plan not only by Republicans and conservatives, but also members of his own Democrat Party.
During the debate over FDR’s Court packing plan, former President Herbert Hoover led a charge to defend both the Constitution and an independent judiciary. President Hoover had warned the nation about the consequences of the proposed New Deal during the 1932 presidential campaign. As the New Deal unfolded Hoover argued that there were “nests of constitutional termites at work.” This was certainly true with the Court packing plan, and Hoover argued that it had the “implication of subordination of the Court to the personal power of the executive.”
Hoover described Roosevelt’s plan as the “greatest constitutional question in these seventy years.” The independence of the judiciary was at stake. Further he argued that “it is the duty of every citizen to concern himself with this question.” In addition, he understood that Roosevelt’s ulterior motive was to appoint Justices that would be favorable to his own philosophy. “If this is to be accomplished the new judges must necessarily be men who will ratify Mr. Roosevelt’s projects,” stated Hoover.
If Roosevelt succeeded in packing the Supreme Court, it would establish a precedent for future administrations. As Hoover explained:
If Mr. Roosevelt can change the Constitution to suit his purposes by adding to the members of the Court, any succeeding President can do it to suit his purposes. If a troop of ‘President’s judges’ can be sent into the halls of justice to capture political power, then his successor with the same device can also send a troop of new ‘President’s judges’ to capture some other power. That is not judicial process. That is force.
Membership of the Supreme Court had remained at nine Justices since 1869. In the past Congress had either reduced or expanded the number of Justices on the Court, but Roosevelt’s plan was seen as an attempt to not only control the judicial branch, but also solidify his control over the executive and legislative branches. President Roosevelt had increased executive power and the strong Democrat majorities provided a virtual rubber-stamp approval for his New Deal legislation in Congress.
“The independence of Congress, the Executive, and the Supreme Court are pillars at the door of liberty,” stated Hoover.
Hoover also directly challenged the notion that the Constitution was a “shackle on progress” as Roosevelt and other New Dealers had argued. It was the Supreme Court that was protecting liberty and upholding the Constitution against Roosevelt’s New Deal measures that went well beyond constitutional bounds. “The American people should thank almighty God for the Constitution and the Supreme Court,” stated Hoover in referring to the Court’s defense of the Constitution.
Roosevelt’s court packing proposal would fail because of the bipartisan opposition, but eventually he was able to appoint his own justices to the Court after the “four horsemen” started to retire. The Supreme Court also started to shift in a more progressive direction with the “switch in time that saved nine” when Justice Owen Roberts sided with the progressive wing of the Court.
In the aftermath of the Court packing fight, President Roosevelt was able to not only shift the Supreme Court in a more progressive direction, but the new Court created a revolution in constitutional law. “The Court began rewriting the Constitution, in effect, not through amendment by the people, the proper way, but by reading the document as it hadn’t been read for 150 years — as authorizing effectively unlimited government,” stated Roger Pilon, who holds the B. Kenneth Simon Chair in Constitutional Studies at the Cato Institute. During President Roosevelt’s time in office, he appointed eight Justices to the Supreme Court. Constitutional law is still being impacted by the legacy of the New Deal constitutional revolution.
At this time, it is unlikely that President Biden’s Court reforms will be enacted, but this should be alarming to all Americans. President Biden and Democrats are constantly arguing that democracy is under threat, but it is actually their policies that are seeking to undermine constitutionalism.
“What is profoundly dangerous and extreme is the progressive effort to destroy the Supreme Court because occasionally its interpretation of the Constitution and federal statutes is other than theirs, or supports traditional American values and Court precedents,” wrote Kenin M. Spivak for the Claremont Institute.
Progressives are not just targeting the Supreme Court. They have openly advocated for ending the filibuster in the United States Senate, abolishing the Electoral College, and other radical ideas that would damage our constitutional system in order for them to both hold power and ensure that their ideology becomes law.
It is imperative that conservatives defend American institutions and the Constitution against these so-called reforms. Today, as President Biden and progressives try to reform the third branch of government, let us remember Herbert Hoover’s battle cry in 1937, “Hands off the Supreme Court.”
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