Jeff Shesol: Obama Should Take Heed from FDR on the Supreme Court
[Jeff Shesol is the author of the forthcoming “Supreme Power: Franklin Roosevelt vs. the Supreme Court.”]
IN his State of the Union address, when President Obama criticized the Supreme Court, Justice Samuel Alito shook his head, scowled and mouthed a two-word dissent: “Not true.” Chief Justice John Roberts, meanwhile, smiled serenely, apparently untroubled by the president’s attack.
Now we know what Chief Justice Roberts really thinks.
Last week, he fired back, describing the scene as “very troubling.” The chief justice painted a harrowing picture of “one branch of government standing up, literally surrounding the Supreme Court, cheering and hollering while the court — according to the requirements of protocol — has to sit there expressionless.”...
This sort of presidential push-and-shove with the judiciary is unlike any since the 1930s, when Franklin Roosevelt waged a very public battle with the court’s conservative majority over the fate of the New Deal — a fight that culminated in Roosevelt’s plan to enlarge and pack the court. The White House tends to welcome comparisons between Presidents Obama and Roosevelt. But in this case, it is an analogy to avoid. Roosevelt’s court fight makes clear just how much Mr. Obama stands to lose in any such protracted struggle....
In his 1937 State of the Union address, Roosevelt warned the court to toe the line, bringing Democrats to their feet in wild applause. (To his disappointment, all nine justices, in a break from precedent, boycotted the speech.) One month later, the president made his audacious proposal to increase the number of justices from 9 to 15, and to fill the new seats with liberals.
Roosevelt was not the first president to spar with the Supreme Court. A number of reform-minded presidents — Thomas Jefferson, Andrew Jackson, Abraham Lincoln and Theodore Roosevelt among them — had complained that the court was wrongheaded or reactionary. But none carried the fight as far as Franklin Roosevelt did, or paid as dearly for it. Congress defeated his proposal to expand the court. And though the court did reverse itself in 1937 — in the middle of the Senate debate on the president’s plan — Roosevelt had split the Democratic Party, reawakened the opposition and undermined his second-term agenda.
The Obama administration should keep this in mind as it escalates its war of words with the court. Even though most Americans agree with the president’s position on campaign spending by corporations, the political upside of attacking the court may be short-lived. It is one thing for a president to forcefully disagree with a decision. But to engage in a public back-and-forth with the chief justice is fraught with risk....
The court’s change in direction in 1937 endured because Roosevelt was ultimately able to replace nearly all the justices with his own appointees. If Justice John Paul Stevens retires at the end of this term, as many analysts expect, Mr. Obama will have the chance to make his second appointment. But even then, he will have to wait for an opportunity to shift the court’s balance of power. Patience, in the face of pressing national challenges, is hard. But change, as is now amply clear, does not come quickly.
Read entire article at NYT
IN his State of the Union address, when President Obama criticized the Supreme Court, Justice Samuel Alito shook his head, scowled and mouthed a two-word dissent: “Not true.” Chief Justice John Roberts, meanwhile, smiled serenely, apparently untroubled by the president’s attack.
Now we know what Chief Justice Roberts really thinks.
Last week, he fired back, describing the scene as “very troubling.” The chief justice painted a harrowing picture of “one branch of government standing up, literally surrounding the Supreme Court, cheering and hollering while the court — according to the requirements of protocol — has to sit there expressionless.”...
This sort of presidential push-and-shove with the judiciary is unlike any since the 1930s, when Franklin Roosevelt waged a very public battle with the court’s conservative majority over the fate of the New Deal — a fight that culminated in Roosevelt’s plan to enlarge and pack the court. The White House tends to welcome comparisons between Presidents Obama and Roosevelt. But in this case, it is an analogy to avoid. Roosevelt’s court fight makes clear just how much Mr. Obama stands to lose in any such protracted struggle....
In his 1937 State of the Union address, Roosevelt warned the court to toe the line, bringing Democrats to their feet in wild applause. (To his disappointment, all nine justices, in a break from precedent, boycotted the speech.) One month later, the president made his audacious proposal to increase the number of justices from 9 to 15, and to fill the new seats with liberals.
Roosevelt was not the first president to spar with the Supreme Court. A number of reform-minded presidents — Thomas Jefferson, Andrew Jackson, Abraham Lincoln and Theodore Roosevelt among them — had complained that the court was wrongheaded or reactionary. But none carried the fight as far as Franklin Roosevelt did, or paid as dearly for it. Congress defeated his proposal to expand the court. And though the court did reverse itself in 1937 — in the middle of the Senate debate on the president’s plan — Roosevelt had split the Democratic Party, reawakened the opposition and undermined his second-term agenda.
The Obama administration should keep this in mind as it escalates its war of words with the court. Even though most Americans agree with the president’s position on campaign spending by corporations, the political upside of attacking the court may be short-lived. It is one thing for a president to forcefully disagree with a decision. But to engage in a public back-and-forth with the chief justice is fraught with risk....
The court’s change in direction in 1937 endured because Roosevelt was ultimately able to replace nearly all the justices with his own appointees. If Justice John Paul Stevens retires at the end of this term, as many analysts expect, Mr. Obama will have the chance to make his second appointment. But even then, he will have to wait for an opportunity to shift the court’s balance of power. Patience, in the face of pressing national challenges, is hard. But change, as is now amply clear, does not come quickly.