Academic highlight: Pildes on FDR’s court-packing plan
on Apr 24, 2012 at 12:52 pm
Most readers of this blog are familiar with one of the greatest constitutional showdowns in American history: President Franklin Roosevelt’s threat to alter the composition of the Supreme Court through his “court-packing” plan after the Court repeatedly invalidated his New Deal legislation. As the story is usually told, the confrontation ultimately culminated in the Court caving to political pressure and voting to uphold the rest of the President’s legislative agenda, obviating the need to enact legislation altering the Court’s membership. The incident is of particular interest today, when President Obama is being urged (by some) to “run against the Supreme Court” should it strike down the Affordable Care Act.
In a recent article, Is the Supreme Court a Majoritarian Institution?, Professor Richard Pildes challenges the conventional account of the showdown, contending not only that the Court won this battle, but also that it seriously weakened Roosevelt’s presidency. Pildes points out that the President’s court-packing plan was “in dire shape politically long before the Court’s ‘switch in time’ took the last wind out of that effort.” Thus, Pildes does not see a direct link between the court-packing threat and the Court’s subsequent decisions. Moreover, Pildes argues that the court-packing plan was very costly for FDR, and ultimately “destroyed his political coalition, in Congress and nationally, and ended his ability to enact major domestic policy legislation.” All this, despite FDR’s enormous popularity at the time he took on the Court politically. In short, President Obama should think twice before making the Supreme Court a major issue in the upcoming election.
Pildes’s revisionist view of this incident supports his broader point that the Court remains a deeply counter-majoritarian institution. He thus disagrees with scholars such as Barry Friedman and Jack Balkin who contend that the Court rarely deviates for very long from majority preferences. I recommend Pildes’s article for those interested in the details of Roosevelt’s confrontation with the Court, as well as broader questions about the effect of popular and political pressure on the Court’s decision making.