“When you don’t like the message,” the old saying goes, “shoot the messenger.”
In the wake of Supreme Court rulings they don’t like, leading Democrats in Washington renewed calls last year to “pack” the Court with more liberal justices. Were that to happen, it would surely set off “tit for tat” fights the next time a Republican sits in the White House.
Democrats control the Senate today and could conceivably muster the votes to fill a vacancy if one occurs in the next two years. But a plan spearheaded by Senator Ed Markey (D-Massachusetts) to change the Court’s composition from nine to 13 has no chance to pass both houses of Congress, at least for the moment. Boosting the number of justices for purely ideological advantage is the very definition of court-packing.
Reducing the size of a court can also be seen as a form of court packing (or “unpacking”), depending on the intent. Ten years ago, then-Congressman (now Senator) Tom Cotton (R-Arkansas) introduced the ironically named Stop Court Packing Act. It would have reduced the number of judges on the United States Court of Appeals for the District of Columbia from eleven to eight. Clearly meant to thwart President Obama’s nominees to the court, it went nowhere.
When Democrat Franklin Roosevelt attempted court-packing in 1937, a prominent member of his own party helped lead the successful fight to defeat it. That would be none other than Montana Senator Burton K. Wheeler, who put country ahead of party when he declared,
Create now a political court to echo the ideas of the Executive and you have created a weapon. A weapon which, in the hands of another President in times of war or other hysteria, could well be an instrument of destruction. A weapon that can cut down those guarantees of liberty written into your great document by the blood of your forefathers and that can extinguish your right of liberty, of speech, of thought, of action, and of religion. A weapon whose use is only dictated by the conscience of the wielder.
Born and raised in Massachusetts, Wheeler earned his law degree from the University of Michigan before heading for Seattle. He never made it. His train stopped in Butte, where he lost almost everything he had in a poker game. He decided to recoup by building a law practice in Montana.
His political career began in 1910 when, at age 28, he was elected to the Montana legislature. After running unsuccessfully for Governor in 1920, he won a US Senate seat two years later. Wheeler was a staunch ally of Roosevelt’s New Deal policies, but he courageously broke with FDR over the court-packing plot.
Fresh from a landslide reelection to a second term in 1936, Roosevelt was determined to crush the independence of the Supreme Court by turning it into a rubber stamp for the White House. He was so rattled by rulings against his dubious New Deal policies that he publicly smeared the Court as “those nine old men.” Nobody had tampered with the size of the Court since 1869, when Congress established that the highest judicial body would consist of nine justices.
FDR asked lawmakers to approve a plan whereby the President could nominate a new justice every time a sitting one reached the age of 70 and failed to voluntarily retire. Roosevelt already controlled the executive branch and held sway over the legislative branch, with big Democratic majorities in both the House and Senate. For Wheeler, a grab for the judicial branch was a bridge too far.
In his 1962 biography, Yankee from the West, Wheeler showed just how out of sync he was with many of his political allies:
What bothers me about today’s “liberals” is this: through the ages, those called liberal fought to take the power away from the kings and the emperors and to give it to the parliaments; now it is the “liberals” who are anxious to give more and more power to the executive, at the expense of the legislative branch.
Remember in 2016 when President Obama nominated Merrick Garland for a seat on the US Supreme Court? Republicans held no hearings on the nomination and it died when Democrats lost the White House a few months later—a fact which became a motive for angry Democrats to resurrect the idea of packing the Court as revenge. Garland became the Biden administration’s Attorney General in 2021 and arguably one of the least competent and most partisan individuals to hold that post in decades. Refusing to give the Garland nomination a hearing turns out to have been both a good idea and perfectly constitutional.
The Constitution does not say “The Senate must confirm the President’s nominees.” It doesn’t even say “The Senate must hold a hearing on the President’s nominees.” The Senate is empowered to simply “advise and consent” as it sees fit. In 2016, by not holding hearings, the Senate majority did just that. It advised the President that it didn’t much care for his nominee and would not consider giving him its consent.
In 1937, FDR’s scheme took a big hit when the Democrat-controlled Judiciary Committee reported negatively on the bill. It said the plan’s “ultimate effect would undermine the independence of the courts” and “expand political control over the judicial department.” As Thomas Jipping of the Heritage Foundation notes,
The report’s arguments apply as much today as they did more than 80 years ago. Court-packing is simply “an attempt to change the course of judicial decision” by “neutralizing the views of some of the present members.” Disagreeing with some judicial decisions, however, does not justify destroying the judiciary itself. “It is far better,” they said, “that we await orderly but inevitable change of personnel than that we impatiently overwhelm them with new members.” Once court-packing destroys judicial independence, it cannot be restored.
The whole thing went down in flames five months after FDR proposed it. Even his own Vice-President, John Nance Garner of Texas, dumped on it. When the court-packing bill came up for debate in the Senate chamber, Garner signified his distaste for it by holding his nose and displaying a “thumbs down.” Looking back on it all years later, then-Senator Joe Biden of Delaware labeled FDR’s stunt as a “bonehead” move. Wheeler was right all along, and in bucking the President of his own party, he was fully vindicated.
Americans can be thankful that the cynical effort to corrupt the Court in 1937 was defeated by principled legislators like Montana’s Burton K. Wheeler. We should hope that any similar schemes in the future will meet the same fate.
For Additional Information, See:
Sutherland, Butler, Van Devanter and McReynolds: Liberty’s Saving Hands by Lawrence W. Reed
Melville Fuller: What Do We Want in a Supreme Court Justice? by Lawrence W. Reed
Why Packing the Supreme Court is a Bad Idea by Gary Galles
How Packing the Court Would Endanger Our Liberty by Brad Polumbo
Notorious RBG Opposes Court Packing by Jonathan H. Adler
Progressives Want to Revive FDR’s Undemocratic Court-Packing Idea by Tom Mullen
(A version of this essay was first published at FrontierInstitute.org.)