Biden Inherits F.D.R.’s Supreme Court Problem

The Supreme Court, by design, is undemocratic, but is there a point beyond which its insulation from the will of the people becomes unjust? Much has been said about the fact that the makeup of the current Court does not reflect that of the elected branches of the federal government. In response, on April 9th, Joe Biden signed an executive order establishing a bipartisan Presidential commission, to study the prospect of changing the Court’s composition and culture. The Court can be shrunk or expanded by a simple majority vote in Congress, and the dream of doing just that has occasionally tantalized Presidents beset by judicial opposition—most famously, the predecessor whom Biden cites frequently as an inspiration: Franklin Delano Roosevelt. In the Oval Office, Biden has awarded prime real estate—right above the mantel—to a portrait of F.D.R. But, on the issue of the Court, his fondness belies contrasts in the two leaders’ political instincts.

Illustration by João Fazenda

After a landslide reëlection in 1936, Roosevelt, frustrated that one popular New Deal program after another had been struck down in a Court dominated by a group of conservative Justices known as the Four Horsemen, plotted a counterattack: a law that would increase the number of Justices from nine to fifteen, altering the size of the Court for the first time in sixty-eight years. For months, he kept the idea secret, even when Justices dined at the White House. He told an adviser that he could either enjoy “one cocktail before dinner and have it a very amiable affair,” or reveal his explosive plan and “take three cocktails.” Finally, on February 5, 1937, he proposed legislation that would add as many as six new Justices—one for every member of the Court over the age of seventy years and six months—camouflaging his plan as an effort to insure a “systematic addition of younger blood.”

But Roosevelt had miscalculated. Critics accused him of trying to “pack” the Court. “Tell your President, he has made a great mistake,” the liberal Justice Louis Brandeis said. Lawmakers were deluged with mail opposing the plan, and even other Democrats worried that it would erode the separation of powers. In July, after months of controversy, Congress rejected the bill. By then, however, the threat had achieved its effect: Owen Roberts, a Justice who had often voted with the conservatives against the New Deal, had switched sides, and one of the Four Horsemen, Willis Van Devanter, had retired, and the Court never barred another major plank of Roosevelt’s program. As Russell Wheeler, a Supreme Court scholar at the Brookings Institution, put it, “The fuse was stamped out before it got to the dynamite.”

The political obstacles to expanding the Court today remain steep. Doing so would require overcoming a Republican filibuster—or, short of that, uniting enough Democrats to scrap the filibuster itself. But the idea has regained popularity among Democrats since 2016, when Mitch McConnell, then the Senate Majority Leader, prevented President Barack Obama from filling the late Justice Antonin Scalia’s seat, on the dubious claim that it was inappropriate to confirm a Justice in an election year. That November, Donald Trump lost the popular vote but won the Presidency, and in his one term he installed three Justices, establishing a 6–3 conservative majority. The third instance, filling the seat of Ruth Bader Ginsburg, who died in September, 2020, came when votes in the Presidential election were already being cast. McConnell abandoned his previous objection and rushed through the confirmation of Amy Coney Barrett.

During the 2020 Presidential campaign, many Democratic contenders argued that McConnell’s manipulation constituted its own form of court-packing, and thus forced them to consider radical reforms, including adding seats. But Biden, who arrived in Washington in 1973, is loyal to many of its traditions. In 1983, as a senator, he called Roosevelt’s maneuver a “bonehead idea”; in 2005, he praised the courage of those who resisted it, and, in 2019, during the primaries, he reiterated his objection to a Democratic-led expansion, saying, “We’ll live to rue that day.” But, after Ginsburg’s death, Biden, under pressure from the left, promised to appoint a panel that would examine a range of reforms, including court-packing, term limits—some scholars have suggested instituting staggered eighteen-year terms—and a code of conduct. (Several Justices have been criticized for appearing at partisan events, failing to recuse themselves from certain cases, and the like.)

Still, Biden’s commission seems designed to project stately deliberation rather than activist urgency. It is charged with holding hearings over the next six months and publishing an analysis, but not with making policy recommendations to the President. Its roster, composed of thirty-six members, features prominent academics and former federal judges, many of whom have been Supreme Court clerks. It includes Laurence Tribe, a leading liberal at Harvard Law School, and Sherrilyn Ifill, the head of the N.A.A.C.P. Legal Defense and Educational Fund, as well as Thomas Griffith, a former judge on the U.S. Court of Appeals for the D.C. Circuit, who wrote an opinion, later vacated, that would have invalidated crucial parts of the Affordable Care Act. Yet the announcement of the commission satisfied almost nobody. McConnell described it as a “direct assault on our nation’s independent judiciary.” Many saw it as a sop to the left, but progressives, too, were dismissive; Demand Justice, an advocacy group that calls for adding four seats to the Court, said in a statement that the commission is “unlikely to meaningfully advance the ball.”

After decades of careful centrism, Biden has proved to be more radical on policy than many Americans predicted. Yet, when it comes to the institutions of American democracy, his instinct is for restoration, not revolution. Even as the Republican Party remains mired in the seditious fervor of Trumpism, Biden is hostile to overt partisanship. That puts him in chronic tension with the progressive frontier of his party—and it means that, like Roosevelt, he could find some of his most ambitious achievements undone by conservative Justices. But, for a President who pledged at his Inauguration to put his “whole soul” into “bringing America together,” expanding the Court runs counter to his belief in the possibility that it can retain at least a shred of insulation from partisan politics.

More than eighty years after Roosevelt’s gambit, another Justice Roberts may concur with that belief. John Roberts has lamented what he calls a “misperception” that the Court’s behavior is preordained by its political makeup, and he has emerged as a centrist vote. Wheeler, of Brookings, sees historical lessons at play. “Roosevelt’s proposal went nowhere, but the Court got the message and changed its jurisprudence,” he said. “I can’t imagine John Roberts doesn’t have that in the back of his mind.” ♦

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