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Packing the Court Is a Real Threat

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FDR’s legislation went nowhere but intimidated the justices into rewriting the Constitution.

Democrats are threatening to pack the Supreme Court by enacting legislation to expand its size if they take the White House and Senate in 2020. That would instantly replace a 5-4 conservative majority with a left-leaning one that would be irreversible unless Republicans win control of the government and expand it even further. As in 1937, when Democrats first mooted the idea, such legislation is unlikely to pass. Yet as in 1937, the threat itself may be enough to produce the desired effect by intimidating the justices.

Eighty-two years ago, Franklin D. Roosevelt had won re-election in a 61% landslide. The Democrats had secured enormous majorities in both houses of Congress. The people were behind the president and his New Deal programs to restrict the labor and agriculture markets and thereby lift wages and prices for politically powerful groups.

FDR had a problem, however. His signature New Deal programs clearly exceeded Congress’s power to regulate commerce “among the several States.” For 150 years, the Constitution’s Commerce Clause had been understood to reach only transactions that crossed state lines. Thus the justices struck down as unconstitutional virtually every New Deal program passed in FDR’s first term. FDR began referring to the justices as “the Scorpions.”

The 1936 election seemed to enhance his mandate to implement the New Deal. And nowhere in the Constitution is it written that the court must have nine justices. Thus the president proposed expanding the Court to 15 justices. The six new ones would make a four-justice minority into a 10-5 majority.

Democratic lawmakers balked. “A liberal cause was never won by stacking a deck of cards, by stuffing a ballot box, or by packing a court,” said Sen. Burton Wheeler (D., Mont.). But the justices seemed to get the message. In 1937, starting with NLRB v. Jones & Laughlin Steel Corp., a majority began to surrender to the New Deal programs, ruling that the federal government could regulate economic activity that didn’t actually cross state lines.

In the ensuing five years, leading to Wickard v. Filburn (1943), the court effectively put its imprimatur on a new, progressive constitution. Limited and enumerated powers gave way to plenary federal authority subject only to the whims of transient political majorities and the malleable individual rights of a “living constitution.”

For decades, Republicans have campaigned on calls for judicial restraint, and in the past few decades the court has at least sometimes inclined in that direction. But the transformation of 1937 left the Supreme Court on thin ice, and Chief Justice John Roberts jealously guards its “political legitimacy.” In cases such as NFIB v. Sebelius (2012) and Department of Commerce v. New York (2019) dealing respectively with ObamaCare and the census, he has cast the deciding vote for liberal outcomes that seem at odds with his legal reasoning. As in 1937, mere threat may prove as transformational as a constitutional amendment.

Originally published at The Wall Street Journal.