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Judicial Intimidation and the Dirty Business of ‘Court Packing’

John Hodgson /


On March 4, 1801, as Thomas Jefferson was being sworn in as the third U.S. president with pomp and circumstance, a bitter and despondent ex-president John Adams was already on his long, sullen journey home to Massachusetts, declining even to wish his old friend well, much less attend his inauguration. Scarcely a quarter century after the first shots of the American Revolution, the two men who had been co-authors of the Declaration of Independence, colleagues, friends, and co-revolutionaries had become the bitterest of political enemies.


The presidential campaign of 1800 was unprecedentedly noxious, as President Adams contended to hold his seat against Jefferson, his own vice president. There was vicious name calling in the papers. Adams jailed Jefferson’s campaign manager on charges of sedition. As Adams’ days in power were drawing to a close, he infuriated Jefferson by nominating John Marshall to serve as chief justice of the United States, a man he knew would perpetuate the Federalist philosophies of American government for decades to come and act as a check on Jefferson’s radical ideas.


John Adams and John Marshall believed that the foundational principles of “the law of nature and nature’s God” encapsulated in the Declaration of Independence and the safeguards for liberty built into the Constitution were timeless and not to be tampered with by jurists or future generations. By contrast, Jefferson was known to have been a fan of the godless, bloody, and lawless French Revolution and held the belief that modern generations should not be bound by the laws of the past. These sentiments understandably made Adams and his allies more than a little concerned about what a President Jefferson would do and how he might alter the young American republic, hence the appointment of Marshall.


Jefferson himself described the election as the “revolution of 1800,” but the world marveled at the bloodless transfer of power that took place between rival factions. Jefferson and his allies had many epic legal battles with Justice Marshall and the other Federalists on the Supreme Court, going so far as to impeach Justice Samuel Chase, a move that was viewed as intimidation towards the other Federalist justices. In the end, however, Jefferson had respect for the rule of law and the Constitution, and he did not misuse executive power to bend the Supreme Court to his will.


Over a century later, President Franklin D. Roosevelt, an ardent fan of Jefferson, was facing a crisis in the Great Depression and taking radical steps to try to solve it. Roosevelt and a compliant Congress made rapid and sweeping changes with his package of “New Deal” laws, some of them destructive to the foundational rights of private property in America and unduly intrusive upon private commerce. A conservative group of Supreme Court justices known as “The Four Horsemen” along with swing vote Justice Owen J. Roberts ruled 5-4 to strike down several key parts of Roosevelt’s New Deal legislation as unconstitutional. The president was understandably frustrated at this impediment to the growth of his executive power.


After winning re-election in 1936, Roosevelt was confident enough to begin discussing a legally dubious scheme to “pack the Court,” adding enough justices sympathetic to the New Deal to simply out-vote the other members of the Court. While Congress was not persuaded, Justice Roberts abruptly changed his stance and started voting with the progressives on the Court, which led to the upholding all subsequent New Deal laws by a margin of 5-4 or more. As a lasting testament to the power of judicial intimidation, the Supreme Court has not struck down a single socioeconomic law since 1937, although many arguably exceeded constitutional bounds. Court packing was not necessary — just the threat of court packing did the trick.


The composition of the Supreme Court has varied in past centuries, but the maximum number of justices has remained at nine since the passage of the 1869 Circuit Judges Act. Nine justices were able to handle all the crises of law that accompanied World War I, the Great Depression, World War II, the social upheaval of the 1960s, the Civil Rights acts, and the 9/11 Terror Attacks. As expected, not all Americans agreed with every judgment, but for the most part they have respected the decisions of the Court as the law of the land and sought gradual change in the Court’s composition via their votes in presidential elections.


For the first time in decades, there is serious and open discussion of the dirty business of “court-packing” among progressive and Democratic leaders. The only reason for such a move is to subvert the rule of law in America by adding politically oriented justices that will out-vote current justices to create laws that the duly elected Congress is unable to pass.


The framers of the Constitution created three co-equal branches of government: the Legislative (the Congress, which makes the laws), the Executive (the President, who executes the laws), and the Judicial (the Supreme Court, which interprets the laws by ruling on their constitutionality). An activist judiciary that creates law from the bench is legislating, not judging. In a fair system, one cannot be both the fighter in the ring and the referee of the fight. A president who bends the Court to his will through judicial intimidation and threats of court-packing is on the path to dictatorship, an idea wholly incompatible with the principles of America.


It is a popular misconception that politics have only recently become nasty and divisive. The election of 1800 had very high stakes and was as bitter and nasty as any we have seen in the modern era. What was different is that the two contenders and the general public had a deep and abiding respect for the rule of law and the restraints of the Constitution.


Let there be no more serious discussion of “court packing” in 2020 — or any year. Any candidate who will not immediately renounce such a dirty scheme is not worthy of the presidency. America is a nation of laws, built on the firm and unchanging foundation of the Declaration of Independence and the Constitution. An America where a “packed court” subverts the rule of law is America in name only and no longer the Constitutional Republic that has been the envy of the world and the beacon of freedom for 244 years.


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