FDR’s Constitutionalism, Which Was Preferable To Herbert Hoover’s

Shorter Verbatim Jonah Goldberg: “…this election year does look quite a bit like Hoover vs. Roosevelt (and given that choice, I’ll take Hoover.)” He goes on to defend the constitutional vision of the Four Horsemen against the one that has been the broadly accepted norm of American constitutionalism for many decades; apparently the “constitution-in-exile” isn’t always a strawman.

While I’m here, I should also note that Goldberg’s claim that FDR’s “court packing scheme that intimidated the Supreme Court into rubber-stamping New Deal policies” is almost certainly erroneous — the key “switch in time” by median justice Owen Roberts occurred in votes that had been cast in conference before the scheme was even announced, and of course the scheme failed in the Senate before the cases came down (so had Roberts been acting out of political fear he could have switched his vote back knowing that no court-packing law was going to be passed in the near future.)

In a recent issue of N+1, Mark Grief made a claim about this that is just transparently wrong:

Elected to four terms in office, working with Democratic majorities in both houses for his key legislation, he was also the progenitor of a failed and utterly illegal and unconstitutional attempt to pack the Supreme Court when it got in his way.

This is, of course, utterly wrong. The proposed court-packing plan was (as Congress ultimately decided) probably unwise and contrary to informal 20th century norms of judicial independence, but it was completely legal and constitutional. The Constitution does not fix the number of Supreme Court justices, which is left entirely to the discretion of Congress. (Indeed, the Court’s membership fluctuated from 5 in 1789 to as high as 10 before the modern norm was established.) And given that within 5 years FDR was (thankfully) able to “pack” the Court by replacing judges who were clinging to anachronistically narrow conceptions of federal power with those who shared his constitutional vision anyway, the threat to democracy adding judges would have represented was pretty modest. The judiciary is never going to be a long-term obstacle to the key priorities of electoral majorities, and this is in general a good thing.