Scholars are asking the same questions about the role of the Supreme Court today as they were back in President Franklin D. Roosevelt’s time when he tried to expand the Supreme Court and stack it with his supporters: “Was it the judge’s role to essentially pass on the wisdom of economic legislation? Or was it the judges’ role to essentially … let Congress do what it felt needed to be done to advance the general welfare?” Author Jeff Shesol posed these questions at a CAP event last Wednesday about his new book Supreme Power: Franklin Roosevelt vs. The Supreme Court. Shesol was joined by Dahlia Lithwick, senior editor at Slate, on a panel moderated by John Halpin, Senior Fellow at CAP.
Halpin summarized the book as a three-act drama of the stability of democracy itself. “One is a decades-long ideological battle between competing world views about government, the economy, and the Constitution,” he said, “the second is how this ideological battle plays out politically in relation to the Court in the 1930s. And then there’s the third act that’s a little more implied, which is what’s the long-term legacy of this battle, both ideologically and politically for the New Deal and for…debates about the Court and jurisprudence throughout the 20th century,” Halpin explained.
The Supreme Court shot down each item on President Roosevelt’s New Deal agenda beginning in 1935. The impoverished social and economic situation meant that violent revolution was a real threat in the United States by late 1936 and early 1937. President Roosevelt was looking for a solution that was “constitutional, and that was quick and that would be effective,” Shesol said. Nowhere in the Constitution does it mandate the number of seats on the Supreme Court, so President Roosevelt decided to expand the Court to 15 judges and pack it with liberals. His plan failed, split the Democratic Party, and transformed the American constitutional landscape.
“When we think about the Court-packing plan we have an idea that the Court was way out of line. That it was striking down good, good laws,” Lithwick said. “No, these were well-intentioned laws, but…it’s not the case…they were horrified by the really very quick…one after another churning out legislation,” she explained.
But by 1936, “the Court has covered the constitutional landscape and has knocked down not only laws that were sloppily drafted, but laws that were exceedingly carefully drafted,” Shesol said. The Court decided with sweeping opinions to “pre-emptively overrule any such legislation in the future” so President Roosevelt came to believe that no matter how legislation was drafted, it was the justices themselves who would prevent the advance of anything he tried to do, Shesol added.
President Roosevelt thought the Constitution “was a very flexible instrument” and that the doctrines used to strike down the New Deal were obsolete, Shesol explained. Yet it’s evident in the conservative justices’ letters that they “believe [President] Roosevelt is centralizing power in his own hands” and both the Court and [President] Roosevelt viewed this constitutional argument as one about the survival of democracy and believed that a dictatorship would rise out of the ashes of failure, Shesol said.
The competing ideologies of constitutional formalism versus the notion of an elastic, living constitution have as much of an effect on legislative decisions today as they did in President Roosevelt’s day. Lithwick described the book as “manna from heaven” because of its timeliness in the current discussion of “jurisprudential theories and originalism” evolving around President Barack Obama’s decision to criticize the Supreme Court’s Citizens United ruling in his State of the Union address. “Eighty percent of the public hated the Citizens United decision,” she said. Clearly, the Court is “way out of whack” with public opinion.
Even today’s linguistic framework for conversations about the Supreme Court and presidential powers have not evolved much from the 1930s. Organic law and theories of evolution are still used to defend the living Constitution argument, versus constitutional formalism’s “language about how the constitution is set in stone, how it’s sort of oracular, and how it’s divine and this notion that the constitution is the secular Ten Commandments, it’s immutable, it doesn’t change,” Lithwick said.
There is a “perfect alignment between one’s economic views and one’s constitutional views in this way,” Shesol added. “If you believed that reform was essential…you tended to see the necessity to have the constitution … evolve with our understanding of contemporary realities. If you were pretty comfortable with the established order…you tended to be drawn to a kind of jurisprudence…that really had no room for these wild social experiments,” he said.
The prevailing Court model right now is to be an umpire with “the language of constraint” and do as little as possible so that you don’t appear to support more presidential power, Lithwick lamented. “We happen to be in a sort of trough right now in history where to talk about the idea that the Constitution seeks to protect minorities or seeks to protect the underprivileged is to look reckless,” she said. It has also become somewhat taboo to challenge the finite nature of the Constitution and insist that it’s a living document that should fit the times.
Conservatives have dominated the conversation on the Constitution for the last couple of decades, and we need to hear progressives assert their points of view, Shesol said. “What [President] Roosevelt understood and what he constantly reiterated is that this argument between these two notions of the Constitution goes back to the nation’s founding…and so [President] Roosevelt made this argument with a sense of supreme self-confidence that he was true to the intentions of the founders,” Shesol continued, “And we have somehow—on the progressive side—allowed the conservatives…to get away with the argument that the founders were universally in favor of smaller, weaker government, and state’s rights and so forth…and [President] Roosevelt didn’t believe that. I don’t imagine President Obama believes it either but it would be useful thing to hear him say forcefully.”
The two moments in time are very similar, but the key difference is that now we don’t have “a full-fledged coherent” progressive view of the Constitution, Lithwick said. This is a much more “one-sided view of the Constitution…but this is a moment where the president has decided to take on the Court” with Citizens United, she explained. Yet his argument against the decision has been a pragmatic one—that this decision can open up our elections to foreign interests—rather than a constitutional argument, despite the fact that he’s a constitutional professor.
“[President] Roosevelt was defending a whole set of policies that saved the country, that saved capitalism, created a modern social welfare system and renewed the concept of equal opportunity,” Halpin said. “Perhaps part of the problem today is that the issues outside of, say, the health bill, don’t seem as pressing.”