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PACK THE COURT?  A contrary Supreme Court now promises to give Pres. Obama even more grief if he doesn't do something about it. |
Obama has to deal with Supreme Court 'Thwarters'
of TheColumnists.com
This may come as a surprise to some people.
The United States Constitution does not specify the size of the Supreme Court. The original Judiciary Act of 1789 set the number of justices at six. It shrank to five in 1801. It expanded to seven in 1807. It grew to nine in 1837 and 10 in 1863. It fell back to seven in 1866. It returned to nine in 1869 and it has remained at that number for more than a century.
Political issues accounted for the changes. The Federalists reduced the number to five, hoping to deprive Thomas Jefferson of an appointment. The incoming Democrats repealed that measure, putting the number back up to six and then raised it to seven, giving Jefferson an additional appointment. It went to nine in 1837 to give Andrew Jackson two more seats. Civil war issues led to more fluctuations before the Court settled at the current nine when President Ulysses Grant gained two new appointments.
So there is nothing writ in stone that the Supreme Court must have nine members. And I suggest that embattled President Obama deal with this hostile conservative/reactionary Court now by enlarging it by three members.
The Court’s recent controversial decision equating corporations with individuals turned an already overly money-influenced system into a veritable free-for-all of propaganda for corporate and vested interests. It was met with criticism by most legal scholars, praised only by National Association of Manufacturers mouthpieces.
The decision even prompted Obama--“Mr. Can’t We All Get Along?”--to criticize the Supreme Court decision in his State of the Union speech. A lot of good that will do. The Court currently has four hard-liners--the thwarters against what Obama strives for: Antonin Scalia, Clarence Thomas, John Roberts and Samuel Alito. The so-called swing voter, Anthony Kennedy, votes with the hard-liners in the big cases.
As the Court stands now, it is reminiscent of the stonewall President Franklin Roosevelt faced in trying to expand the Court in 1937 when faced with the opposition of four entrenched reactionaries who voted down New Deal legislation. The four, known as the “Four Horsemen,” were not only anti-New Deal, but some demonstrated a personal dislike for FDR himself.
Justice James McReynolds reportedly stated in response to rumors that he may retire, “I’ll never retire as long as that crippled son-of-a-bitch is still in the White House.”
People who otherwise might be sympathetic to Obama increasing the Court refer to Roosevelt’s failure to gain support for his plan. He sought to appoint an additional justice for each incumbent justice who reached the age of 70 years, six months, and refused retirement. Under his proposal such appointments would continue until the Court reached a maximum size of 15 justices.
Ostensibly the proposal was made to ease the burden of the docket on the elderly judges, but his actual purpose was to pack the Court with justices who would support vital New Deal policies and legislation. The phrase “packing the court” became the pejorative that turned the public against FDR.
Despite the opposition, his plan never met actual defeat because of changes in the Court. Justice Owen Roberts seemingly was intimidated by the country’s approval of the New Deal to come over to the liberal’s side in a case which ruled that a Washington State minimum wage law was constitutional. It was called “The switch in time that saved nine.”
The balance of the Court was changed for good with the retirement of another Horseman, Willis Van Devanter, and the confirmation of liberal Hugo Black in August, 1937.
It is of note now that Roosevelt lost public backing for his plan, because in this case the master politician didn’t lay the groundwork to get the public on his side. Roosevelt bungled by trying to be secretive in putting his plan across. He didn’t bring important Democratic leaders into his confidence before he announced his plan at a press conference.
The Democratic leaders were miffed that the President hadn’t consulted them before taking such a momentous step. Kentucky Senator Alben Barkley (later Harry Truman’s 1948 running mate) complained that Roosevelt was a “poor quarterback” on the Court Plan. The lawmakers understood FDR’s reasoning--he knew they would try to talk him out of his proposal--but this simply made matters worse.
Could Roosevelt have recovered and rallied supporters to defeat the opponents of his plan? He didn’t have to. The Roberts “switch in time” and Van Devanter’s resignation changed the rules of the game.
Obama has had hard-headed opposition from the Republicans in Congress. South Carolina Republican Sen. Jim DeMint’s comment, “If we are able to stop Obama on [health care] it will be his Waterloo” symbolizes unwavering Republican opposition. And the recent Supreme Court decision assures he will get grief from "The Thwarters" now on the Court.
So Obama should give himself a fighting chance by changing the rules of the game the way they did in 1801, 1807, 1837, 1863 and 1866. He should work to name three new Justices to the Court to meet the challenges he faces. He should once and for all forget his futile talk about “bi-partisanship” with the DeMints and be the quarterback for change in the Court.
It would be a tumultuous fight; it would be for a change we could believe in.
©2010 by Stan Isaacs. The Stan Isaacs caricature is ©2001 by Jim Hummel. This column first posted Feb. 15, 2010.
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