When FDR Tried to Pack the Court
“It is wrong to think of the [Supreme] Court as another political institution,” Supreme Court Associate Justice Stephen Breyer said recently, in reaction to contemporary calls to “pack” the U.S. Supreme Court with additional members so as to ensure that Democratic Party efforts to pass unconstitutional legislation will not be frustrated by decisions of the current justices. Advocates of increasing the present number of justices, such as Senate Majority Leader Chuck Schumer of New York, argue that President Donald Trump’s addition of three justices — Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett — has shifted the ideological balance of the court, and adding more justices will shift it back.
The desire to “pack” the Supreme Court with additional justices in order to pass a progressive agenda is not a new idea. In 1937, fresh from winning reelection by sweeping 46 of 48 states, President Franklin Delano Roosevelt likewise saw the Constitution — and any effort by the Supreme Court of his day to adhere to it in opposition to his unconstitutional schemes — as a roadblock to increasing his own power and that of the federal government.
To “remedy” the situation, Roosevelt asked — demanded, actually — that Congress increase the membership of the Supreme Court from nine members to 15. Naturally, he would then nominate six members more compliant with his views, and a compliant Democrat-dominated Senate would confirm them. Then, any legislation that FDR could dream up would face no resistance from the Supreme Court.
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