WI: Roosevelt suceeded in his court stacking plan

Johannes Parisiensis · Nov 22, 2014

OTL, in 1937, faced with several Supreme Court rulings overturning many of New Deal acts - Black Monday - and injunctions blocking several instructions, Franklin D. Roosevelt proposed the Judicial Procedures Reform Bill to nominate one younger judge per each Federal judge over 70, limiting to two lower court judges and six SCOTUS justices, to allow judges to float between district courts and to let the SCOTUS to have a larger control upon the lower courts, seemingly to reduce the courts' workload and to inject new blood in judiciary.

In front of the large opposition, along with "the switch in time that saved nine", Roosevelt cancelled this project and the bill passed, in a much altered form.

So, what would be the effects of this bill passing:

For the Roosevelt presidency
During the following decades

Lastly, would some provisions be deemed unconstitutionnal?

Maeglin · Nov 22, 2014

It would weaken Marbury v. Madison judicial review to the point that Congress ends up with a sort of quasi-parliamentary sovereignty situation. This in turn means that (1) the judiciary is far less politicised and controversial, since any ruling can effectively be overturned, and (2) nothing is "off the table" as far as representative government is concerned - Brown v. Board of Education, and Roe v. Wade would then be subject to further Congressional debates, with Southerners trying to overhaul the court yet again.

Mikestone8 · Nov 23, 2014

A few years down the line, do we get a judicial equivalent of the 22nd Amendment, providing that no appointment shall be made which would cause the number of associate justices to exceed eight?

Sabot Cat · Nov 23, 2014

Assuming that the Senate doesn't have successful filibusters for all of the new appointments, the Supreme Court finds the Judicial Procedures Reform Bill of 1937 unconstitutional 9-0 on the grounds that it undermines judicial independence. They may maintain the ability to administer the lower courts through proctors, not sure. The six newly appointed Associate Justices make this decision 9-6, although the Supreme Court doesn't recognize them as a part of the court.

Cook · Nov 23, 2014

Johannes Parisiensis said:
So, what would be the effects of this bill passing?

Each new president would use it to his upmost to manipulate and neuter the Supreme Court.

Johannes Parisiensis · Nov 23, 2014

Mikestone8 said:
A few years down the line, do we get a judicial equivalent of the 22nd Amendment, providing that no appointment shall be made which would cause the number of associate justices to exceed eight?

Wouldn't this potential amendment use the number of Federal Circuits to ensure a justice is supervising at least one circuit?

Sabot Cat said:
Assuming that the Senate doesn't have successful filibusters for all of the new appointments, the Supreme Court finds the Judicial Procedures Reform Bill of 1937 unconstitutional 9-0 on the grounds that it undermines judicial independence. They may maintain the ability to administer the lower courts through proctors, not sure. The six newly appointed Associate Justices make this decision 9-6, although the Supreme Court doesn't recognize them as a part of the court.

And would FDR be impeached?

Orry · Nov 23, 2014

Sabot Cat said:
Assuming that the Senate doesn't have successful filibusters for all of the new appointments, the Supreme Court finds the Judicial Procedures Reform Bill of 1937 unconstitutional 9-0 on the grounds that it undermines judicial independence. They may maintain the ability to administer the lower courts through proctors, not sure. The six newly appointed Associate Justices make this decision 9-6, although the Supreme Court doesn't recognize them as a part of the court.

And the supreme court is recognized as the ultimate tyranny as it is seen to be claiming to be the supreme power in the land and ignoring the will of the elected representatives of the people....

Sabot Cat · Nov 23, 2014

Orry said:
And the supreme court is recognized as the ultimate tyranny as it is seen to be claiming to be the supreme power in the land and ignoring the will of the elected representatives of the people....

If such is the case, which it really, really wasn't at the time, the bill is given a rewrite to allow the appointment of ten Associate Justices.

Johannes Parisiensis said:
And would FDR be impeached?

A House and Senate that would pass this bill is not one that's going to impeach [and then remove] the president over it.

Antipater · Nov 23, 2014

Sabot Cat said:
Assuming that the Senate doesn't have successful filibusters for all of the new appointments, the Supreme Court finds the Judicial Procedures Reform Bill of 1937 unconstitutional 9-0 on the grounds that it undermines judicial independence. They may maintain the ability to administer the lower courts through proctors, not sure. The six newly appointed Associate Justices make this decision 9-6, although the Supreme Court doesn't recognize them as a part of the court.

That would be unlikely to happen. The constitution is vague on the matter of expanding the Supreme Court. For the Supreme Court to arbitrate a matter that concerns itself, and disregard the interests of the other two branches of government would amount to something only a little short of a judicial coup.

As a practical matter, Cardozo, Stone and Brandeis would not have been likely to sign such an opinion.

Sabot Cat · Nov 23, 2014

Antipater said:
That would be unlikely to happen. The constitution is vague on the matter of expanding the Supreme Court. For the Supreme Court to arbitrate a matter that concerns itself, and disregard the interests of the other two branches of government would amount to something only a little short of a judicial coup.

It would be pretty much the same thing they did in Marbury v. Madison.

As a practical matter, Cardozo, Stone and Brandeis would not have been likely to sign such an opinion.

I'm not sure why they wouldn't want to uphold the independence of the judiciary branch, or risk a constitutional crisis.

The Kiat · Nov 23, 2014

It sets a dangerous precedence. Whenever a President is in trouble, he just appoints more judges. Johnston and Nixon would have a field day with it.

Rich Rostrom · Nov 23, 2014

Antipater said:
That would be unlikely to happen. The constitution is vague on the matter of expanding the Supreme Court.

The Constitution says nothing whatever about the size of the Supreme Court.

The Court had only six Justices to start with. It expanded to nine, and a tenth was added at the time of the Civil War. It was reduced to nine at the next vacancy (which was not filled) and has been nine ever since.

There is nothing in the Constitution to prevent a party or faction which has majorities in the House and Senate, and holds the Presidency, from creating ten new seats and filling them overnight. They could also create additional District, Circuit, and Appellate judgeships (to ensure, for instance, a friendly majority in every en banc decision), and filling them immediately. The Constitution requires "the Advice and Consent of the Senate" for the appointment of Justices and judges, but there is no definition of how this is done - the Senate could approve a list of nominees on a single vote.

This could even be done by a lame-duck Congress and President. Imagine that the party in power is crushingly defeated in an off-year election, but decides to cling to de facto authority. In the two months between the election and the new Congressional term, they pass acts as described above, and fill all the vacancies created.

(They could do the same for all the regulatory commissions of the U.S. (SEC, FTC, FEC, FCC, NRLB, FERC, etc.)

Then for the next two years, the President rules effectively by decree, with the automatic approval of the U.S. courts - if not in the initial ruling, then in Appellate Court or the Supreme Court.

It would be very hard to prevent an affective dictatorship from taking root. But then if a party capable of doing this could get the power to do it, American democracy would be very sick indeed.

Grand Admiral Thrawn · Nov 23, 2014

Would be an interesting TL, to make that happen in 2006- Senate Republicans end the filibuster in Jan 2005, and face OTL 2006 wipe out. Like kit bashing the end of Adam's term (packing judicial/other agencies), FDR's frustration (Pelosi/Obama foiled), and the Internet together.

Sabot Cat · Nov 23, 2014

Rich Rostrom said:
There is nothing in the Constitution to prevent a party or faction which has majorities in the House and Senate, and holds the Presidency, from creating ten new seats and filling them overnight. They could also create additional District, Circuit, and Appellate judgeships (to ensure, for instance, a friendly majority in every en banc decision), and filling them immediately. The Constitution requires "the Advice and Consent of the Senate" for the appointment of Justices and judges, but there is no definition of how this is done - the Senate could approve a list of nominees on a single vote.

This could even be done by a lame-duck Congress and President. Imagine that the party in power is crushingly defeated in an off-year election, but decides to cling to de facto authority. In the two months between the election and the new Congressional term, they pass acts as described above, and fill all the vacancies created.

(They could do the same for all the regulatory commissions of the U.S. (SEC, FTC, FEC, FCC, NRLB, FERC, etc.)

Then for the next two years, the President rules effectively by decree, with the automatic approval of the U.S. courts - if not in the initial ruling, then in Appellate Court or the Supreme Court.

It would be very hard to prevent an affective dictatorship from taking root. But then if a party capable of doing this could get the power to do it, American democracy would be very sick indeed.

Yes, but the Supreme Court can realize this and argue that the President is violating the spirit of the Constitution if not its text by undermining the independence of the judiciary branch, not to mention over a century of precedent. Thus, they'd strike it down.

TRH · Nov 23, 2014

Sabot Cat said:
Yes, but the Supreme Court can realize this and argue that the President is violating the spirit of the Constitution if not its text by undermining the independence of the judiciary branch, not to mention over a century of precedent. Thus, they'd strike it down.

It could be argued in turn that the Supreme Court intervening in legislation that affects the Court is, shall we say, a conflict of interest. Seems like it would only hurt their position, and they still can't enforce their rulings.

Emperor Julian · Nov 23, 2014

Sabot Cat said:
Assuming that the Senate doesn't have successful filibusters for all of the new appointments, the Supreme Court finds the Judicial Procedures Reform Bill of 1937 unconstitutional 9-0 on the grounds that it undermines judicial independence. They may maintain the ability to administer the lower courts through proctors, not sure. The six newly appointed Associate Justices make this decision 9-6, although the Supreme Court doesn't recognize them as a part of the court.

Except that it has been for the entire history of the US the responsibility of laws passed by the legislature and signed by the executive to set the number of the court. The Supreme Court can't strike it as unconstitutional without also striking down all of the laws saying how many members can be on the court. The law that said that the number of judges would be 9 was only 67 years old; Congress had changed the size of the court six times before in US history.

usertron2020 · Nov 23, 2014

Sabot Cat said:
Assuming that the Senate doesn't have successful filibusters for all of the new appointments, the Supreme Court finds the Judicial Procedures Reform Bill of 1937 unconstitutional 9-0 on the grounds that it undermines judicial independence. They may maintain the ability to administer the lower courts through proctors, not sure. The six newly appointed Associate Justices make this decision 9-6, although the Supreme Court doesn't recognize them as a part of the court.

Considering how the Charles Evans Hughes Court (prior to FDR putting the Fear of Almighty God into them by his court packing bill) held in contempt the concept of building SCOTUS coalitions (many of these most controversial decisions were being made in the same 5:4 mode as the equally divided Rehnquist/Roberts courts) it's unlikely Hughes will get any "9-0" votes. The four man Liberal Minority by this time must have hated the arch-reactionary "Four Horsemen of the Apocalypse" and Hughes. Sound familiar?

Besides, if they tried such a bald power play themselves, it would prove the righteousness of FDR's bill, and if necessary would provide the impetus for a constitutional amendment that the Supreme Court by it's very nature couldn't touch.

Johannes Parisiensis said:
<snip>FDR be impeached?

Impeaching America's most popular President in the 20th Century would be a reactionary (and Chicago Tribune) wet dream, but that's all it would be. Skippy the Alien Space Bat wouldn't even touch it.

Orry said:
And the supreme court is recognized as the ultimate tyranny as it is seen to be claiming to be the supreme power in the land and ignoring the will of the elected representatives of the people....

All those 5:4 votes were going a long way towards doing that already. There have been seen in American history to be FIVE God Awful Supreme Courts:

Taney (Dred Scott)
Fuller (Ferguson v. Plessy)
Hughes (too many to list)
Rehnquist (ditto, but Bush v. Gore tops the list)
Roberts (same here, but Citizens United and gutting the VRA tied for first)

Sabot Cat said:
A House and Senate that would pass this bill is not one that's going to impeach [and then remove] the president over it.

The Gingrich Congress (after the fact) couldn't whip up the votes to impeach FDR

Antipater said:
That would be unlikely to happen. The constitution is vague on the matter of expanding the Supreme Court. For the Supreme Court to arbitrate a matter that concerns itself, and disregard the interests of the other two branches of government would amount to something only a little short of a judicial coup.

And amount to making FDR appear (once again!) as an executive savior.

Sabot Cat said:
I'm not sure why they wouldn't want to uphold the independence of the judiciary branch, or risk a constitutional crisis.

After FOUR consecutive Democratic landslides, the "Five Old Men" of the Supreme Court, Republican Arch-Reactionaries all, were seen in their scuttling of much of the New Deal as flipping the bird to the American People in the name of defending their own archaic political principles.

The Kiat said:
It sets a dangerous precedence. Whenever a President is in trouble, he just appoints more judges. Johnson and Nixon would have a field day with it.

It would be difficult to find a more dangerous time than the deepest depths of the Great Depression, a time when the Communist Party in 1935 hit it's all time height of popularity in the USA. And I'd trust FDR more than Nixon. [1].

1] Nixon got his "revenge" anyways.

I would think that a larger number of justices would indeed help prevent judicial hardening of the arteries, and preventing Rehnquist and Scalia from injecting their own politics into the American landscape far beyond any reasonable measure.

Readman · Nov 23, 2014

On a side note what I always found intertesting is that, in any event the entire court-packing/enlargment was really moot anyway, being as FDR was POTUS long enough to apponit a good number of his *own Justices* anyways

Without getting too much in the tropes weeds..does that count as "Nice Job Breaking it, Hero?"

Grand Admiral Thrawn · Nov 23, 2014

You do realize usertron2020, that most Americans did not support the bill? The link said 41-49% opposed it, while about 39% supported. So most Americans didn't see it as "flipping the bird to the America public." And the bill was delayed to death by conservative Democrats; even Vice President Garner opposed it. Republicans were surprising smart and stayed quiet. Also, reading the wiki link, it seems mildly funny that 2 Justices stayed longer since their pensions were cut.