Court Politics Will Get Uglier than Ever Before

Back in March of last year, amid hints that congressional Democrats might seek to expand, or “pack,” the Supreme Court to enhance their judicial sway, I wrote a piece for this space suggesting that would be politically foolhardy. At the time, I didn’t really take the threat seriously because it seemed like such an outlandish thing to even contemplate, let alone to actually try to do. And if they did try, I argued, the political backlash would be severe. 

By way of illustration, I told the story of Franklin Roosevelt’s famous “court packing” effort back in 1937, following his powerful sweep of American politics in the 1936 presidential and congressional balloting. The president won reelection with 60.8 percent of the popular vote. He pulled in 523 Electoral College ballots to just eight for his opponent, Republican Alf Landon. Meanwhile, the opposition GOP ended up with only 17 seats in the Senate and 89 in the House. 

“Who was there to say him nay?” wrote reporters Joseph Alsop and Turner Catledge in a lively book narrative of the court-packing drama, The 168 Days.

As it turned out, plenty of influential figures emerged to say him nay and thwart what was widely considered, even by some Democrats and New Dealers, an unconscionable power grab. In the end, FDR not only was defeated in his effort to reshape the Court but got his fingers burned in the process. 

In my TAC piece of 18 months ago, I suggested that Democrats would suffer a similar political fate if they tried a similar initiative. 

“Good luck with that,” I warned, with full confidence in my historical and political sagacity. “The American people don’t like that kind of raw power maneuver, as FDR discovered to his chagrin. Any presidential candidate who pushes too hard on this issue will live to regret it, as will any president who seeks to succeed where Franklin Roosevelt, at the height of his influence, so abjectly failed.” 

Now, just a few months later, those words don’t seem so sagacious, which reflects how profoundly the political dynamics of America have changed in such a brief time. Back in 1937, the American people, who revered Roosevelt and had just handed him more power than just about any president had ever wielded in our democratic system, wouldn’t follow him into this enterprise, which seemed to the collective citizenry as dangerous to the republic. 

In those days and until recently, it was all about the rules of political engagement. Some were embedded in the Constitution, as hallowed a document as was ever produced, in the view of most Americans. Some were products of tradition and past practice in the delicately balanced U.S. political system, thus not to be tampered with cavalierly lest that delicate balance be disturbed. 

Now the rules of engagement are fair game whenever they get in the way of the political aims of the partisan cadres. And there doesn’t seem to be much prospect that people of either party will step back and say, “No, the system and its traditional rules are too important—too sacred, really—to be trampled upon for the sake of political advantage.”

Consider President Obama’s action in 2012 to grant legal status to some illegal immigrants brought to America as children, through no fault of their own. Before he did that he insisted repeatedly that he lacked the authority to do so. Pressed on the matter, Obama dismissed the idea as a violation of how our governmental system works. “I am not a king,” he said. “I am the head of the executive branch of government.” Pressed further, he explained what that means: “There are enough laws on the books by Congress that are very clear on how we have to enforce our immigration system that for me to simply through executive order ignore those congressional mandates would not conform with my appropriate role as president.” 

Then he did it anyway. When, five years later, President Trump sought to rescind the Obama order through his own executive action, he was thwarted by the U.S. Supreme Court under Chief Justice John Roberts based on a view that Trump hadn’t followed proper procedural niceties in trying to reverse a clearly unconstitutional executive action through his own executive initiative. Rules of engagement? Out the window. And no Democrats raised any questions about Obama’s unconstitutional move. 

That’s not how it was in FDR’s day. When he called in top members of Congress to summarily announce his plan for expanding the court’s size so he could steer it in his favored direction, the reaction was instant. Those present, wrote Alsop and Catledge, “did their best to keep their astonishment out of their faces, but it was a poor best.” Hatton W. Sumners of Texas, a strong New Dealer up to then and chairman of the House Judiciary Committee, announced to his colleagues on the way back to the Capitol, “Boys, here’s where I cash in my chips.” 

He had decided almost instantly that he would oppose this effort on the part of his president to upend the governmental balance of power. And he did, implacably, throughout the six-month drama. In the end, men like Sumners handed Roosevelt his head. It was a stark instance of principle over politics. “Suddenly,” wrote Alsop and Catledge, “the shabby comedy of national politics, with its all-pervading motive, self-interest, its dreary dialogue of public oratory and its depressing scenery of patronage and projects, was elevated to a grand, even a tragic plane. Suddenly the old Greek Theme of Hubris and Ara, of pride and the fall that comes after, dominated the play.” 

Now we live in that shabby comedy of politics, with its all-pervading motive, self-interest, dreary dialogue of public oratory and depressing scenery of patronage and projects. Hubris is everywhere in evidence, and no fall ever seems the consequence.

Senate minority leader Chuck Schumer has warned darkly that “nothing is off the table” if Republicans fill the current Supreme Court vacancy before the election and Democrats retain the House, capture the Senate, and gain the White House. That seems to mean, at the very least, the obliteration of the Senate filibuster, devised early in the republic to protect minority views from being trampled by the majority. It likely would mean an effort to expand the Court, in the FDR mold, to give the Democrats a chance to tilt it back toward the liberal viewpoint. It could mean statehood for the District of Columbia and Puerto Rico to give Democrats four new Senate seats and a longtime lock on that chamber. 

One has to ask: If this becomes the Democrats’ agenda, who will emerge to say them nay? Who will be the modern-day Hatton Sumners putting principle over party? The answer is that there won’t be any. The old rules of political adversity, so crucial in maintaining a certain balance in the governmental system and a degree of comity among adversaries, are sacred no more. Where this will leave us in, say, five years is not comforting to contemplate. 

Robert W. Merry, former Wall Street Journal correspondent and CEO of Congressonal Quarterly, is the author most recently of President McKinley: Architect of the American Century (Simon & Schuster). 

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