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Is Court-Packing Next for Obama?

Steven Horwitz

The last few weeks have seen the Supreme Court at the front and center of American political consciousness thanks to the oral arguments over the health care legislation commonly known as Obamacare. The drama has unfolded in two acts. First there were the hearings at which a number of justices actually demonstrated, much to the horror of Obamacare’s defenders on the left, a genuine understanding that the Constitution just might–if only weakly–limit the State’s ability to coerce the individual. The second act was Obama’s response suggesting that if the Court overturned the law, its actions would be “unprecedented” and violate the power of Congress to legislate as it sees fit. Even though the President backed off that rhetoric somewhat, his attack on the Court lingered, suggesting that should it strike down the law, there will be a political price to pay.

To those with a sense of history the events ring familiar. In the depths of the Great Depression, Franklin Delano Roosevelt launched a similar attack on the Supreme Court–one of the few times he overplayed his hand and angered the American people. Obama should take a lesson and tread carefully as the campaign unfolds.

Acts Struck Down

FDR’s trouble with the Court began when the justices found the two pillars of the first New Deal to be unconstitutional. The Agricultural Adjustment Act and the National Industrial Recovery Act were designed to give the government more power to control prices, wages, and output in agriculture and industry respectively. Both were attempts as quasigovernmental planning in the form of cartels that nominally represented all interested parties in a particular market (much in the style of Italian Fascism). But in reality they were State-sanctioned cartels that gave more power to producers. Both acts are echoed in Obamacare’s similar attempt to give the State an even larger role in the market for health care.

In 1935, just under two years after they were passed, the Supreme Court declared both acts unconstitutional. FDR was outraged. He immediately took to the bully pulpit and denounced the decisions, saying they would take the United States back to “the horse and buggy days.” The rhetoric of his modern left-liberal counterpart Obama has similarly accused his opponents, and the conservative members of the Court, of wanting to “turn back the clock.” This wasn’t a first for Obama. You’ll remember that in a State of the Union address he called out the Court for its Citizens United  ruling.

In both cases his underlying argument is that the Court has no business getting in the way of “progress”—with progress defined, apparently, as whatever the duly elected members of Congress say it is. The left’s commitment to “democracy” quickly trumps any belief in limits to State power, at least when it comes to economic issues. When Congress under the Bush administration condoned torture as a security strategy, the left suddenly (and correctly) remembered that maybe there are some things governments cannot legitimately do. It is disappointing, but not at all surprising, that the same people are staring incomprehensibly and babbling incoherently as the Court seriously entertains applying that exact same principle to the centerpiece of Obama’s presidency.

Court-Packing Scheme

Perhaps we should be thankful that Obama hasn’t done what FDR did next. His frustration with the Court manifested itself in a proposal, which he submitted to Congress, to let him name an additional justice to the Court (up to six) for each one who had not retired within six months of his 70th birthday and who had served for at least ten years. The Judicial Procedures Reform Bill of 1937 became known as Roosevelt’s “court-packing plan.” The perception that Roosevelt was trying to rig the game drew the ire of the American people. The reaction, including from some of his supporters, was so intense that he had to withdraw the proposal. Many historians think that this overreach left a bad taste in the American public’s mouth and remains the source of many complaints that FDR was almost a dictator.

For all the flaws in the Constitution and all the missteps of the Supreme Court in the last 75 years, the Court remains the guardian of whatever individual rights the Constitution is still believed to protect. Attacks on the Court when it is doing its most important job–namely, limiting State power–amount to assaults on those precious few liberties. Such attacks reveal the real agenda of those who launch them: the desire to remove all obstacles to their arrogant “vision of the anointed.”