Editor's note: It would appear this is an item we are likely to face. Some interesting stuff here, to help you get ready. And wouldn't you know, it was an ag case that was the trigger for this entire episode...
...The Democrats aim to add justices to shift the Court’s balance leftward to erase the current conservative majority. Consider Sen. Chuck Schumer’s blatant 2020 threat warning the Supreme Court justices ahead of a decision on a Louisiana abortion case which tested Roe v. Wade.
I wanna tell you Gorsuch, I wanna tell you Kavanaugh, you have released the whirlwind and will pay the price, you won’t know what hit you if you go forward with these awful decisions.
Then there are two inappropriate intrusions by President Barack Obama: his 2010 attack on the Court’s free-speech ruling in the Citizens United case during his State of the Union address and his 2012 veiled warning to the Court in advance of its decision on Obamacare to not engage in “judicial activism.”
To her (rare) credit, House Speaker Nancy Pelosi has stopped the House from considering court-packing legislation. But Sen. Sheldon Whitehouse, who sits on the Judiciary Committee — and who, one hopes, never is elected to the Oval Office — bragged that his 2020 attack on Amy Coney Barrett during her confirmation hearing might have saved Obamacare, which was upheld in June. The none-too-subtle senator crowed, “If we hadn’t done that, maybe they would have” killed the law. “It may be [saved],” he added, “because we did so many warnings.”
Round One: FDR’s 1937 Court-Packing Debacle
The predicate for examining the 2021 court-packing debate is to review its infamous 1937 historical antecedent. The late Chief Justice William Rehnquist devoted an entire chapter in his 1987 book The Supreme Court: How It Was, How It Is to Franklin Roosevelt’s failed 1937 attempt to pack the bench.
Rehnquist set the stage for the first and so far only attempt to pack the Court by noting that in the 72 years from 1861 to 1933 — 18 presidential terms — Republicans controlled the White House for 56 years, excepting only Andrew Johnson (1865–69) Grover Cleveland (1885–89 and 1893–97), and Woodrow Wilson (1913–21). FDR then served continuously from 1933 until his death in 1945, just shy of three months into his fourth term.
FDR’s power reached its apex after his 1936 landslide over Alf Landon, who carried only his native Vermont and Maine. In addition to winning 46 states, FDR brought his party to epic heights in the House and Senate. Democrats began 1937 holding a 333-89 edge in the House and a 76-18 edge in the 96-seat Senate.
During FDR’s first term, three Court decisions landed the Supremes in hot water with the administration and its allies in Congress. The Supreme Court decided these cases on what New Dealers called Black Monday (May 27, 1935).
The first case, Humphrey’s Executor v. U.S., involved FDR’s attempt to remove a member of the Federal Trade Commission, whose members are confirmed by the Senate. The Court held that the president lacked the power to do so.
The second case, Louisiana Joint Stock Land Bank v. Radford, involved a complex mortgage security interest the bank held on a farmer’s property and sought to take much of the property without paying “just compensation” per the Fifth Amendment. Rehnquist summarized the holding: “[H]owever great the urgencies created by the farm depression, Congress could not deprive the mortgage holder of so much of his security without paying compensation for it.”
In the third case, Schechter Poultry Corp. v. U.S., the Court struck down the National Industrial Recovery Act, thus invalidating the jewel in the New Deal crown. It held that Congress could not delegate its legislative authority in full to administrative agencies (the “non-delegation doctrine”).
But the proverbial judicial straw that finally broke the presidential camel’s back was the January 1936 Court decision U.S. v. Butler. The Court struck down the Agricultural Adjustment Act as an unconstitutional use of the federal taxing power to invade regulatory provinces ceded by the Constitution to the states.
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