Since their failure to prevent the confirmation of Brett Kavanaugh as a justice of the Supreme Court, strategists on the left have been debating ways to take back control of the high court. These range from term limits for justices to restricting the Court’s jurisdiction, but the one that will likely attract the most support – and will undoubtedly debut in the 2020 presidential race – is a re-run of FDR’s 1937 court-packing plan.
There, Roosevelt – after his landslide victory in the 1936 elections – proposed adding seven new associate justices to the Court, something the massive Democratic majority in 1937 could easily have done. Under the Constitution, Congress determines the number of Supreme Court justices as well as other judges.
The public, however, did not support meddling with the Court, and the plan failed, but FDR won in the end. The mere threat of court-packing appeared to cow the Court; not only did it start to bend in the direction of the New Deal – approving many programs a majority of the justices had previously considered unconstitutional – but the justices themselves began to retire between 1937 and 1941. In those five years, FDR was able to appoint seven new justices, all of whom supported his policies and laid the legal groundwork for the vast administrative state we have today.
This sequence of events, for the first time, raised the idea that the Supreme Court was a political body, and that appointments to the Court could mean favorable decisions for the political party that made and confirmed the appointment.
This issue was front and center in the Kavanaugh nomination fight, and was reawakened when Chief Justice Roberts rebuked President Trump’s remark about “Obama judges.”
Roberts was clearly trying to fight the notion that the courts are politicized, but his comment failed to acknowledge that there are in fact significant differences in judicial philosophy that account for most of the differences among judges. Judges appointed by conservative presidents often have different views of the role of the judiciary than judges appointed by liberal presidents, and these different outlooks – far more than political loyalties – account for the divergence in their decisions.
In general, judicial conservatives – including Chief Justice Roberts – want to take the judiciary out of the political process. They see the Constitution as creating a political system in which elected officials – a president and Congress – respond effectively to the voters, and that their decisions are a better guide to what Americans want or expect from their government than the decisions of unelected administrative officials. Liberal judges, on the other hand, tend to think in terms of a “living” Constitution, in which part of the judiciary’s role is to accommodate the changes that they believe are occurring in society. They tend to see aggressive use of statutory authority by administrative agencies as one of the ways that the government accommodates changes in society.
There is now a conservative majority on the Supreme Court, and thus their instinct will be to keep the judiciary out of controversies that can and should be resolved through the constitutional political system. This will likely entail reducing or eliminating what is called Chevron deference – in which lower courts were directed to defer to administrative interpretations of their statutory authority – replacing it with enhanced judicial review of the legislative authority of administrative agencies. In a 2013 dissent, Roberts himself quoted Chief Justice Marshall’s statement 210 years earlier that “It is emphatically the province and duty of the judicial department to say what the law is.”
In other words, judges are to interpret the laws Congress enacts, determining what powers Congress granted to executive branch agencies. This means that ultimately a political process – votes in Congress – will determine what the government does.
The Court is also likely to look carefully at whether Congress is granting too much authority to administrative agencies. The Constitution vests all legislative power in Congress, and that means there is a point – never well-delineated by the Court – when the discretionary authority granted to an agency is so great that it amounts to an unconstitutional delegation of legislative authority. Roberts recognizes this, too, writing in the same case that in our constitutional structure it is “the obligation of the Judiciary not only to confine itself to its proper role, but to ensure that the other branches do so as well.”
The judiciary, then, in Roberts’ conception, has a responsibility to ensure that Congress – not the administrative agencies of the executive branch, or the courts – makes the major decisions for society.
If the Court simply follows these principles, it will set in place guidelines for the judiciary that will take it, over time, out of politics, and placing political responsibility where it belongs – in Congress. Still, these decisions, if they occur, will be enormously controversial on the left, where the latitude of the administrative state agencies to make far-reaching decisions for society is considered an important element of social progress.
This brings us back to the Court-packing plan. It is unquestionably a serious threat to our constitutional system, and is unlikely to be popular with the American people. But it may work as a bluff – proposed simply to pressure Chief Justice Roberts and the court’s conservatives to back away from reforms that would reduce the power and reach of the administrative state.
Despite his clear judicial philosophy, Chief Justice Roberts’ votes on ObamaCare and other recent cases have signaled that he is also concerned about allowing the Court to make controversial decisions, and this encourages the proponents of a new court-packing plan to pursue their strategy.
If they succeed, and the Court’s conservatives abandon their reforms, it will simply repeat what happened in 1937, and the opportunity to restore the Congress-based representative democracy envisioned by the Framers will be lost.