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Tuesday, August 16, 2022

Adam Carrington: Retrying FDR’s court-packing move would be disastrous

“Man learns from history that man does not learn from history.” My father used to repeat this line to me, a saying he heard from one of his teachers.

We see a sense of citation in the current calls to add judges to the Supreme Court. The calls came louder from the political left in response to President Donald Trump’s appointments of Neil Gorsuch, Brett Kavanaugh and Amy Connie Barrett. He has returned in view of the court’s just completed term. To expand religious freedom, protect gun owners, and Roe v. Those judges proved to have significant votes in decisions to overturn Wade.

We’ve been here before. In 1937, Congress voted on President Franklin D. Roosevelt’s “court-packing” plan. That plan sought to add six judges to the nine already serving.

FDR’s attempt failed, and it’s deserved.

The problem with court packing is not in its strict legality. Congress determines the number of Supreme Court justices. Thus, it has the legal power to change that number. In addition, the legislative branch has exercised this power in the past.

The problem of court packing gets deeper. To overcome its shortcomings, we must understand the role that courts play in our system of government. The judiciary is concerned with the law unlike any other branch. It should take the law as the law exists and interpret and apply it to settle legal disputes. The judiciary thus relies on the law as the basis for all its arguments and all its actions.

Not so with the Congress and the President. Those two institutions rely partly on the law, especially on the supreme law of the constitution. They derive the power to act, make laws and enforce laws from that document. But they are also dependent on voters, who need their support to retain office. It is their over-dependence, at least in relation to the pressure to act. Working through the constitutional machinery, the people exercise significant control over the action taken by these two branches.

The framers of the constitution linked the judiciary with the law for better access to justice. The law tries to treat all people equally and give them a fair chance to prove their innocence. People support such laws in a nutshell, voting for them through their elected representatives.

But the framers knew that people’s immediate reactions to events and individuals to which the law applies could include prejudice and obsession. The Popular Will seeks to circumvent the protection of law, punish a person because he belongs to an unpopular group or convict a person accused of a heinous crime without due process. Supreme Court justices remain untouched by these pressures by not facing election and serving for good behaviour, which essentially means for life.

Their focus on law, statutory and constitutional, means that they maintain a better version of the will of the people as written in just and equal laws, rather than manifest in immediate responses. Thus justice can stem the tide of prejudice and passion in the service of the better angels of our nature. Because of this essential role, Congress has not changed the structure of the court since 1869.

This work for judges sheds light on the problem with court-packing schemes, old and new. Then, as now, the plan to pack the court came from intense opposition to the court’s decisions. This protest came from a sentimental and prejudiced response, which wanted the court to follow the policy priorities of the other branches and not the law found in the Constitution.

In the 1930s, at least five judges opposed important elements of the New Deal and seemed ready to weaken it further. He had good grounds to suspect that FDR and Congress had exceeded their constitutional limits. They rightly, for a time, resisted pressures to act in line with the policy priorities of those institutions, although the “time change that saved Nine” resulted in the court eventually accepting the new deal.

Today, political leftists want more justice to reverse recent court rulings on religious freedom, the Second Amendment and abortion. These plans come from policy priorities wrapped in weak constitutional logic. The court has done much in this last term in its efforts to remove judicial policy-making and instead enforce the law in writing. Opposing this beneficial direction would try to make the court a second legislative branch.

Like 1937, this new court-packing plan is, in all likelihood, doomed to failure. It should go nowhere, another potentially unheard warning for future generations.

Let us remember FDR’s failure to remember the real role of our Supreme Court. And let us try to encourage and protect that role for justice and the rule of law.

Adam Carrington is an associate professor of politics at Hillsdale College in Michigan. He wrote this column for the Chicago Tribune.

World Nation News Desk
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