Packing the Court: Some Musings

 I am reading James MacGregor Burns'  Packing the Court: The Rise of Judicial Power and the Coming Crisis of the Supreme Court. 

 I cannot recommend this book highly enough. If you are worried about current trends in politics, this will calm you.  We’ve been there before. The battle between the Court, Executive, and Legislature began with Marshall’s court; unenumerated rights and processes were at the forefront of debates constantly in the early 19th century, the decisions in Marbury (judicial review) and McCullough (national bank) plus numerous others also illustrate the battle over national v. state rights; extreme partisanship; the division of the country by sectional and class  interests, east v. west, industrial and financial v. agricultural and rural; and not the least, the Electoral College and election of the President with the election of 1800, and 1824 (John Quincy Adin ams defeated Andrew Jackson in 1824 by garnering more votes in the House of Representatives, even though Jackson originally received more popular and electoral votes.) And so it goes, with only the personalities changing.  The issues have never been resolved.

The book’s title is perhaps misleading. When we think of "packing the court" FDR's attempt to add justices to the court immediately springs to mind, yet ever since Marshall's Marbury decision that shifted an enormous amount of power to the court with judicial review, presidents have used political cronyism to add their political adherents to the court. Some one-term presidents, like Trump, have been very fortunate to be able to change the balance of the court in their favor by adding numerous justices that favor their political view. Until Trump, Ronald Reagan had appointed the most justices. William Harrison, Andrew Johnson, Zachary Taylor and Jimmy Carter, all had none. Washington (obviously) and FDR each had eight, so FDR got to pack the court anyway, given his many terms in office.

I won't go on about the validity of Marshall's decision even though one would think that "originalists" would be appalled by judicial review as it was certainly unenumerated, but it does make one stop and pause to realize that unelected judges can have an enormous influence on the direction of the country for many years, an influence even contrary to those in elected office.

FDR was appalled by judicial review.  During a radio talk in 1937 he referred to Marbury v Madison.  The power to declare a law unconstitutional was nowhere in the Constitution, he remarked, and, in fact, Justice Bushrod Washngton almost admitted as much just a little later when he argued the Court should "presume in favor of [a law's] validity until its violation of the Constitution is proved beyond all reasonable doubt. "The Court", Roosevelt continued, " has beem acting not as a judicial body, but as a policy-making body."

I was surprised to learn that following the failure of the Jefferson administration to impeach Pickering and Chase in their effort to get rid of Federalist judges, Marshall was so terrified of the prospect of impeachment that he wrote a friend proposing to mollify the Republicans by giving Congress in concert with the president the right to overturn decisions of the Supreme Court.

The antagonism toward a court that is of opposite political bent probably began with Thomas Jefferson following the packing of the court with Federalists by John Adams. Jefferson wrote Spencer Roane (a vigorous opponent of Marshall’s nationalism and an advocate of slavery, who, ironically, came close to being chosen as Chief Justice in place of Marshall, an appointment that would have drastically changed the nature of the court in the United States):

The constitution, on this hypothesis, is a mere thing of wax in the hands of the judiciary, which they may twist, and shape into any form they please. It should be remembered, as an axiom of eternal truth in politics, that whatever power in any government is independent, is absolute also; in theory only, at first, while the spirit of the people is up, but in practice, as fast as that relaxes. Independence can be trusted nowhere but with the people in mass. They are inherently independent of all but moral law. My construction of the constitution is very different from that you quote. It is that each department is truly independent of the others, and has an equal right to decide for itself what is the meaning of the constitution in the cases submitted to its action; and especially, where it is to act ultimately and without appeal. I will explain myself by examples, which, having occurred while I was in office, are better known to me, and the principles which governed them.*

Ultimately, I think Joshua Braver has it right in his article on court-packing:

Whether court-packing continues to be a live political option will depend on the vagaries of politics. Unless dispelled, however, the common historical narrative will continue to lie like a half-buried loaded gun, ready to be unearthed whenever the Supreme Court threatens the agenda of a new or realigned political party. .... Rather than colonize and infiltrate the Court, Congress curbed it and forced it to retreat through targeted and reversible measures, such as jurisdiction-stripping. [my emphasis] That kind of retaliation against the Court is the “hallowed American political tradition.”

Today, liberal democracy is on the decline, and court-packing has helped

push it there. New times demand reformulations of old theories that encourage

resistance against courts. One response is a knee-jerk reaction that goes to the

opposite extreme and accepts judicial supremacy. But this hermetic sealing off

of politics from law would be just as much a break with American tradition as

court-packing. Going forward, the question is not how to shut down the fierce

and inevitable conflict between the elected branches and the Supreme Court,

but how to manage it. **

**Braver, Joshua. "Court-Packing: An American Tradition?" Boston College Law Review, vol. 61, no. 8, 24 Nov. 2020, pp. 2749-2808. Accessed 1 Nov. 2022. https://core.ac.uk/download/pdf/361263545.pdf 

*"Article 1, Section 8, Clause 18: Thomas Jefferson to Spencer Roane." Electronic Resources from the University of Chicago Press Books Division, press-pubs. http://press-pubs.uchicago.edu/founders/documents/a1_8_18s16.html

For more information on Spence Roane (whom I had never heard of) see https://en.wikipedia.org/wiki/Spencer_Roane