FROM FDR TO TODAY
All Americans mourned the passing of the extraordinary and brilliant Associate Justice Ruth Bader Ginsberg of the Supreme Court of the United States. Moreover, related developments about packing the Supreme Court remind us of its purpose, importance, and composition. Likewise, as our Constitutional system of checks, balances, and civility between the three branches of government is today besieged, we are prudent to recall an earlier consequential moment in American history. Then as now, the philosophy, size and scope of the Supreme Court was similarly challenged. Therefore, we all do well to objectively remember The Supreme Court vs. FDR, the New Deal, “Court Packing,” and how a Chief Justice, balanced court, and bipartisan senate soberly preserved America Ascendant.
CHARLES EVANS HUGHES
Born in 1862, the exceptional American Charles Evans Hughes was Chief Justice of the Supreme Court from 1930 to 1941. He previously served as Governor of New York, an Associate Justice of the Supreme Court and Secretary of State. Firstly, Hughes was the Republican candidate for president in 1916. If he had carried California, he would have won the election. Hughes is the only sitting justice in history to run for president. Moreover, as Secretary of State, Hughes presided over the Washington Naval Disarmament Conference. With Commerce Secretary Herbert Hoover, was one of the ethical and effective members of the otherwise problematic Harding Administration. In 1930, President Hoover nominated Hughes as Chief Justice. He succeeded William Howard Taft, the only person to serve as both president and chief justice. With associate justice Owen Roberts, Hughes was a swing vote between the conservative “Four Horseman” and liberal “Three Musketeers.”
THE NEW DEAL
The United States took a dramatically different course to escape the economic collapse of the Great Depression than did nations like Germany. Firstly, Adolf Hitler seized and centralized absolute power by decree without legislative or judicial participation. Next, Nazi Germany became a one-party fascist dictatorship that rebuilt with a combination of ambitious public works and an aggressive military buildup. Meanwhile, Franklin Delano Roosevelt sought to rescue Americans, liberal democracy, and capitalism with creative and optimistic leadership. His administration focused on relief for the unemployed, recovery of the economy and reform of the financial system. Consequently, FDR’s first term included a broad range of legislative initiatives and the creation of ambitious government programs and agencies under the aegis of a “New Deal”. But observers then and now maintain that the Roosevelt Administration was creating a socialist America rather than rescuing traditional America.
SCOTUS STRIKES BACK
The New Deal was the major challenge facing the Hughes Court. Firstly, in the Gold Clause Cases, SCOTUS supported the administration’s position. Hughes and Roberts joined the liberal Three Musketeers in several other cases. But in succeeding cases, Roberts began to side with the conservative Four Horsemen, including railroad pensions. Hughes dissented, writing, “the power committed to Congress to govern interstate commerce does not require that its government should be wise, much less that it be perfect. The power implies a broad discretion.” Hughes was carefully weighing the scope and long-term consequences of the New Deal. However, in May 1935, SCOTUS unanimously struck down three key New Deal laws. Consequently, Hughes wrote the majority opinion that FDR’s cornerstone National Recovery Act of 1933 was doubly unconstitutional, violating the Commerce Clause and the nondelegation doctrine.
NINE OLD MEN
An angry Dutch New Yorker, FDR pointedly described the Supreme Court as “the Nine Old Men” of Rip Van Winkle and Hudson River legend. Therefore, the president devised a plan to overthrow the independence and authority of SCOTUS by legislative fiat. Consequently, the executive branch enlisted the support of the legislative branch. FDR sought to fundamentally alter the size and scope of the judiciary. If successful, FDR boldly proposed to fashion SCOTUS according to his political philosophy.
FDR RETALIATES AND FAILS
Following his re-election in 1936, FDR recommended the Judicial Procedures Reform Bill of 1937. He brazenly proposed to add six justices to the Supreme Court. This resembles threats being made by today’s Democrats. However, this was the era of the fragile north-south and labor Democrat coalition. The media quickly and vigorously labeled FDR’s attempt to resuscitate the New Deal as a naked political power play, or “court packing.” Moreover, a veto-proof bipartisan legislative majority opposed turning SCOTUS into an executive branch “puppet.” However, FDR did force through the ill-fated Revenue Act of 1937, which significantly increased income taxes. But it boomeranged, effectively ending an economic recovery, and prolonging the depression. Consequently, the New Deal gave way to the bipartisan interventionist versus isolationist America First struggle.
CONSTRUCTIVE AND EVOLUTIONARY PROGRESS
Therefore, in opting to carefully curb the New Deal, Hughes fashioned constructive and evolutionary progress rather than disruptive revolutionary change. Consequently, the Chief Justice and the Supreme Court delivered what the Founders envisioned in the Constitution, an independent judiciary that balanced the executive and legislative branches. Since FDR, presidents and the senate of both parties have respected the nine-justice composition of the Supreme Court. Thus, until recently, restraint and respect for the Judiciary has yielded significant social progress without cultural disruption. Witness the stewardship of former California governor and Chief Justice Earl Warren, appointed by the restrained but resolved President Dwight D. Eisenhower. In the Hughes manner, Chief Justice Warren’s court famously stood for gender and civil rights. Likewise, the courts of successive Republican-appointees Warren Burger and William Rehnquist included justices of color and women, as philosophically balanced courts continued along an enlightened path of cultural advancement.
THE BORK, THOMAS AND KAVANAUGH STORMS
Following Vietnam and Watergate, irrepressible secular progressive inertia inevitably injected raw partisanship that destroyed the formerly civilized judicial selection process. The senate judiciary committee chairmanship of the younger Sen. Joseph Biden (D-DE) was overshadowed by the fervent leadership of liberal lion Sen. Edward Kennedy (D-MA) and other stalwart progressives. Therefore, an era of pivotal and confrontational senate hearings dawned. From Robert Bork (failed) to Clarence Thomas and Brett Kavanaugh (successful), Democrats subjected Republican SOCTUS nominees to brutal philosophical and personal inquisition. But Republicans continued to approve Democratic nominees in the traditionally civil, straightforward, and uncomplicated manner as constitutional presidential prerogatives. However, the political distinction vanished in 2016, when Republican senate leader Mitch McConnell of Kentucky did not act upon the nomination of the well-qualified and respected Merrick Garland by Democratic president Barack Obama to replace conservative legend Antonin Scalia.
THE ROAD TO BARRETT
Enter the unorthodox Republican president Donald Trump. His equally qualified and respected nominee, Neil Gorsuch, won narrow senate approval. With Justice Ginsberg’s passing, the confrontational Trump had the constitutional right to nominate a third conservative jurist, but this time to replace a liberal icon. This was intolerable to progressives. Therefore, Democratic presidential candidate Biden demanded that the senate defer confirmation until 2021, when he might be president and could nominate a liberal Democrat. Echoing FDR, senate minority leader Charles Schumer of New York threatened to pack the court in retaliation if he gains the majority. But this time, a Republican senate led by leader McConnell was prepared to advise, and consent before the 2020 election. Consequently, this seminal moment is political, as determined by the Founders and Constitution. However, the provocative Trump thankfully declined to select a non-judicial political associate, as did FDR and Lyndon Johnson.
SCOTUS DRAMA
Rather, into this volatile cauldron stepped the qualified, respected, and conservative Amy Coney Barrett from Notre Dame University. Consequently, from her judicial philosophy to her Roman Catholic faith, Barrett faced inquisition but more tempered than Kavanaugh. This is the proper prerogative of the senate, who can confirm, deny, or defer. This duty should be accomplished with civility. However, nominees do not necessarily evolve as predicated as justices. For example, Republican nominees Warren (Eisenhower), Sandra Day O’Connor and Anthony Kennedy (Reagan). Or current Chief Justice John Roberts (Bush II). Barrett may ironically vote to block termination of the Affordable Care Act. From the beyond, the exceptional Charles Evans Hughes is looking upon our current election and nomination drama with keen interest, if not pause.
BARRETT CONFIRMED
On October 26, 2020, just after 8:00 p.m., the Senate confirmed Amy Convey Barrett as an Associate Justice of SCOTUS. Consequently, Justice Clarence Thomas swore Barrett to her Constitutional Oath at a subdued and COVID-responsible White House ceremony. Chief Justice Roberts would swear the new Associate Justice to her Judicial Oath the following morning at the Court. Previously, on October 22, the Senate Judiciary Committee voted 12-0 to advance the nomination of Barrett to the full Senate. All the committee Democrats boycotted the vote. Upon Barrett’s Senate confirmation, many bitter Democrats acted out. Hawaii’s Mazie Hirono shouted the voice vote, “hell, no.” Prior to the vote, leader Schumer vowed “revenge and payback.” However, Barrett’s judicial qualifications, temperament, and character were never in question. The new associate justice will immediately join important SCOTUS deliberations.
CONSTITUTIONAL CRISIS
Meanwhile, presidential candidate Biden announced and reiterated his intention, if elected, to form a commission to study whether to add more justices to the current SCOTUS. Moreover, Biden also suggested the idea of rotating justices and other schemes that some legal scholars have called “crazy. ” Therefore, Americans are deciding to entrust their votes without knowing where Biden stands on packing the court. FDR was not so indecisive or evasive. This is an ongoing story, with serious Constitutional ramifications if Democrats really follow through with disrupting the time-honored and successful American system of checks and balances. Moreover, there will be a profound Constitutional Crisis if FDR’s gambit is repeated.
Images Courtesy of the National Portrait Gallery and the National Archives and Records Administration.
Note: primary source material is from America Ascendant, the Rise of American Exceptionalism, Chapter 3, Arsenal of Democracy. with references 1-72 noted on pp. 347-50.