• Curt Levey

Lessons on the 85th Anniversary of FDR’s Court Packing Scheme

The Committee for Justice released the following statement by its president, Curt Levey, on today’s 85th anniversary of Franklin Roosevelt’s proposal to pack the Supreme Court. Mr. Levey testified before the Supreme Court Commission established by President Biden to study court packing and other proposals for restructuring the Court:


December 7, 1941 is not the only day in Franklin Roosevelt’s presidency that can be said to live in infamy. Eighty five years ago today FDR, frustrated by some of the Supreme Court‘s rulings on the New Deal, proposed expanding the Court beyond the nine justices that had been the rule since 1869.


Fortunately for the legitimacy of the Supreme Court, Roosevelt’s court-packing proposal died on the vine. Even FDR’s own party rejected the proposal as a dangerous political manipulation of the Court that threatened the rule of law and judicial independence.


For the next 80 years, FDR’s court-packing proposal was viewed as a stain on his presidency and an embarrassment that would never be repeated. However, the bipartisan, nearly-unanimous nature of that view started to erode about five years ago, when Democrats and their allies began, for the first time since 1937, to see the Supreme Court as an obstacle to, rather than vehicle for, their progressive agenda.


Fortunately, many thoughtful liberals—including legal scholars—continue to view court packing as a very dangerous “solution” to what they see as an overly conservative Supreme Court. Even the left-leaning commission President Biden appointed in reaction to the Democratic base’s calls for court packing was skeptical of the idea in its final report late last year, despite being sympathetic to less partisan reforms.


Nonetheless, calls on the Left for court packing have only increased of late as liberals fear that the Court will overturn or curtail Roe v. Wade this spring and will use the recently granted Harvard and University of North Carolina cases to end race-based admissions. Should progressive fears about abortion come true this spring, there will likely be enormous pressure on Biden and Congressional Democrats to pack the Court before Democrats likely lose full control of Congress in November.


Hopefully, Democrats will nonetheless heed the words of two of the Court’s liberal icons. Retiring Justice Breyer has repeatedly spoken out against court packing, warning that it would lead to the perception of a politicized Supreme Court and would erode the Court's legitimacy. Similarly, shortly before her death, Justice Ginsburg denounced court packing as "a bad idea," adding that "If anything would make the Court appear partisan it would be that."


Justice Breyer’s retirement reminds us that the composition of a nine-justice Supreme Court is always evolving. FDR eventually appointed eight justices to the Court (not including Harlan Fiske Stone’s elevation to Chief Justice). And President Biden’s choice to fill Breyer’s seat will likely be on the Court long after today’s conservative majority has been dissipated by retirement and death.


Presidential and Senate elections fuel that evolution democratically, leaving little excuse to push for radical measures like court packing just because one doesn’t like the Court’s current composition.