Yes, FDR's Court-Packing Scheme Was A Disaster

Eminent historian and public intellectual Kevin Kruse has a piece out today arguing, in essence, that we shouldn't view the failure of Franklin Roosevelt's 1937 "court-packing" plan as a cautionary tale for court reform today. I agree with that as stated! And the way Kruse tells the story of the affair is quite even-handed and fair. But a couple of the subsidiary points he makes strike me as inaccurate, so I thought I'd share my disagreements with y'all. (Am I just picking a fight with someone famous as a means of self-promotion? You be the judge!)

Kruse makes three main points why, in his view, 1937 should not serve as a cautionary tale for 2024:

1. "Popular perceptions of the Supreme Court have changed." In 1937, he says, most Americans viewed the Court with reverence, but now the Court's standing with the public is at an all-time low.
2. "The radicalism of the current Supreme Court far surpasses the previous one." The New Deal Court, Kruse says, was just applying existing precedent in the face of unprecedented government actions, while the current Court "has been gleefully destroying longstanding norms, not solemnly defending them."
3. Finally, "we need to remember that FDR’s Court-packing plan didn’t really fail!" The Plan itself didn't pass, "but in the larger sense, FDR got the Court he wanted." This is both because of the so-called "Switch in Time that Saved Nine," in which Justice Owen Roberts stopped siding with the conservative "Four Horsemen" on the Court and instead provided the critical vote to uphold the (Second) New Deal, and because Roosevelt was able to replace each of the Four Horsemen within a few short years of 1937 anyway.

I agree with point #1! The loss of public confidence is in and of itself a big problem for the Court's ability to perform its function, as I recently argued in Liberal Currents. (Of course, whether the public is right to have lost confidence in the Court is another matter. It is, in my view, because the current Court – very much unlike the New Deal Court – has a serious structural/institutional legitimacy problem. The American People were right, in my view, to resist Roosevelt's effort to attack the Court simply because it had made decisions he and they disliked. And they are right, now, to be open to radical action against a Court that can plausibly be described as having been usurped.)

It's the second and third points that bother me.

Let's start with #2, because this is something that comes up a lot. The idea that the decisions striking down much of the First New Deal were basically correct under existing law is a key component of, for example, Bruce Ackerman's whole theory of "constitutional moments." But it's wrong, or at least oversimplified.

Legally, there are three things doing on in the New Deal-era cases. One is the Commerce Clause, and the scope of federal regulatory power over the national economy. Another is the "nondelegation doctrine," the basis on which much of the National Industrial Recovery Act was struck down in A.L.A. Schechter Poultry Co. v. United States. Finally, there's the "substantive due process" limitation on state economic regulations, the specific doctrine employed in Lochner v. New York (which often gives its name to this entire era of conservative jurisprudence).

Substantive due process was not an issue in any of the New Deal cases, because, you know, the New Deal was federal, not state. West Coast Hotel Co. v. Parrish, the 1937 case that signaled the "Switch in Time" and the end of judicial resistance to the New Deal, was a substantive due process case. But the connection between Parrish and, say, United States v. Darby Lumber Co. (1941), which upheld the Fair Labor Standards Act, is thematic rather than doctrinal.

Nondelegation... well, to the best of my knowledge Schechter Poultry was actually the first time the Court had ever invalidated a law for nondelegation reasons! In the previous couple of decades they had considered whether Congress could confer rulemaking authority on executive agencies, and had concluded that it can. Now, those cases had assumed that there was such a thing as an unconstitutional delegation of legislative authority, conceptually speaking. In that regard, then, we could say that Schechter Poultry was applying existing precedent. Also, the "delegation" in the NIRA really was exceptional: rulemaking authority was granted not just to the federal executive but to private entities, industrial councils that would promulgate standards for themselves. That bothers me, and I'm basically a thoroughgoing nondelegation doctrine skeptic!

No, what we talk about when we talk about the New Deal cases is the Commerce Clause issue. Carter v. Carter Coal Co. (1936) is the paradigmatic case here. After the NIRA was struck down in Schechter Poultry, Congress passed the Bituminous Coal Conservation Act, effectively codifying by statute the coal industry's NIRA code. The Court struck this down on the theory that the power to regulate interstate commerce did not extend to prescribing labor and production standards for coal mining. That the coal might eventually travel in interstate commerce did not mean that the act of mining the coal counted as interstate commerce. The decision in Carter Coal expressly relied upon Hammer v. Dagenhart, the first of the Child Labor Cases, which had struck down the Child Labor Act of 1916 on precisely the same reasoning. (Similarly, United States v. Butler struck down some provisions of the Agricultural Adjustment Act of 1933, which (essentially) imposed taxes on farmers who did not comply with federal regulatory standards. Butler relied on Bailey v. Drexel Furniture Co., the Child Labor Tax Case, which had struck down the prohibitive tax on employers of child labor passed after Hammer v. Dagenhart. In both cases the idea was that the "tax" was in fact just a gimmick to get around the limits of the Commerce Clause power, which, you know, was true enough.)

This is exactly Kruse's story, yeah? The New Deal Court relied on existing precedent to invalidate New Deal legislation. Except...

Except the Child Labor Cases were themselves a doctrinal aberration. Just in the decade prior to 1916, the Court had upheld the Federal Lottery Act, which prohibited interstate shipment of lottery tickets (Champion v. Ames, also known as The Lottery Case); the Interstate Commerce Act, which had established the Interstate Commerce Commission to regulate the railroads (the Shreveport Rate Case); the Mann Act, infamously prohibiting the transportation of women across state lines for immoral purposes (i.e. prostitution) (Hoke v. United States); and the Pure Food and Drugs Act, creating the FDA and prohibiting the interstate shipment of, well, impure foods and drugs (Hipolite Egg Co. v. United States).

Meanwhile on the regulatory-taxes side of things, the Court had upheld a prohibitive tax on the sale of yellow oleomargarine in McCray v. United States (1904). And in United States v. Doremus (1919), it upheld a de minimus annual tax on those involved in the opium trade, nonpayment of which was made a substantial federal criminal offense (an obvious gimmick to make drug trafficking into a federal matter).

A lawyer who had fallen into a coma in 1916 and woken up in 1940, in other words, would have read Darby Lumber Co. and thought it entirely unremarkable.

That the Supreme Court's tantrum in response to new exercises of federal legislation began prior to 1932 is fair enough to note. But it was a tantrum. It was not, in fact, the principled application of the ancient understanding of federal power. Rather, it was a refusal to acknowledge that the ancient understanding would actually validate these innovative exercises of those powers. The basis on which the Dagenhart Court "distinguished" these earlier Commerce Clause cases was, I kid you not, that in those cases the "evil" Congress sought to be addressed was in the receiving state, and therefore could not have happened but for the transit across state lines. The Child Labor Act, on the other hand, sought to regulate an evil in the sending state, which had already fully occurred before any act of interstate commerce had taken place. This is obvious risible nonsense! Like, it's a thing you can say, but there's just no reason why it ought to matter. (Nor does it actually describe the Court's prior decisions; see Weber v. Freed.)

When the Court struck down the Bituminous Coal Conservation Act, it confronted a body of relevant precedent, all but one of which would have told it to uphold the Act. Only Hammer v. Dagenhart stood on the other side. All Roosevelt wanted the Court to do was to treat Dagenhart as the obvious unprincipled aberration it always had been.

Am I telling you that Trump v. United States is no worse than the New Deal cases? I am not. It's really really bad! The proper point of comparison for it isn't Butler, it's, like, Korematsu. But broadly speaking, I think the way Kruse frames the comparison lets the New Deal Court significantly off the hook, and plays into right-wing narratives about the New Deal as a grand constitutional departure far more than is warranted.

As for Kruse's third point, I mean, yeah, it's true that Roosevelt's side came out on top in the end. There's no doubt about that. But I don't really think that fact should shape how we think about the court-packing plan. If anything the fact that the Four Horsemen all left the Court of their own accord in the next four years demonstrates that the Plan was needless.

As for the Switch in Time... I mean this is contested, but it's not at all obvious that (Associate) Justice Roberts's change of heart was a response to Roosevelt's threat. We know from Roberts's papers that he had already expressed a willingness to overrule the Lochner cases if a proper vehicle came along. Roberts, you see, was that rare breed, a genuine doctrinal jurist. He was the kind of judge who might forcefully dissent in one case and then, the following term, concur in a decision applying that very same case as precedent (as fellow doctrinal judge Oliver Wendell Holmes had done in the two Child Labor Cases, respectively).

Now it's not that doctrinal judges will never overrule a prior decision; that's another common misunderstanding. Rather, they won't overrule a prior decision until and unless a party to a case before them actually makes the argument "yes, case X controls this case and means I lose, but it was wrongly decided and should be overruled." As long as the parties are only arguing "X does not control this case, and therefore I win" the doctrinal judge will faithfully apply X to the best of their ability, even if they think that X was in fact wrongly decided and should be overruled. That attitude, at least plausibly, is what explains Roberts's apparent "switch." His actual view of the law arguably didn't change at any point. And the votes in West Coast Hotel v. Parrish were cast before Roosevelt ever announced his Plan.

Again, I don't disagree with Kruse's bottom line. I support "court-packing" (if you want to call it that, which to be honest I kind of do) in our current situation! But I think it's important to be clear about the fact that Roosevelt's Plan really was an attack on judicial independence, and that really was a bad thing. And to be clear about the reasons why that's not true of an attack on the Court today. It's not because the quality of this Court's jurisprudence is categorically worse than that of any other Court in history! As I said in Liberal Currents, much of the function of judicial review doesn't even depend on getting cases "right"! That kind of has to be true, because there will always be major disagreement about which decisions are right or wrong.

No, the really big, categorical difference between this Court and the New Deal Court is that the New Deal Court had been constituted entirely through regular order. There had been no shenanigans about confirmation hearings. One of the conservative "Four Horsemen," Justice McReynolds, had been appointed by Progressive Democrat Woodrow Wilson, while two of the liberal "Three Musketeers," Harlan F. Stone and Benjamin Cardozo, had been appointed by Republicans Calvin Coolidge and Herbert Hoover, respectively. All nine Justices were appointed by presidents who had won clear majorities of the national popular vote; all nine were confirmed by overwhelming margins. Pierce Butler had received the most "nay" votes for his confirmation of any of the Four Horsemen, with, uhhh, eight. Fellow conservatives Sutherland and Van Devanter were confirmed on voice votes! Liberal titan Louis Brandeis, meanwhile, had 22 votes opposing his confirmation (because he was Jewish, basically), and Charles Evans Hughes had opposition from 26 Senators, I assume for reasons related to his 1916 run for President.

There was, in other words, simply no reason to doubt that these nine people had been duly chosen by the American People, through their representatives and through the specified constitutional processes, to sit on the Supreme Court. That the People stood by their Court even when it stood in the way of Roosevelt's immensely popular agenda is a testament to their commitment to constitutional self-restraint. But, for I think the first time in the Court's history, this is no longer the case, for reasons I discuss in more detail in my Liberal Currents piece. That's the difference between 1937 and 2024 that we should be focusing on.