The Democrats are threatening to enact a court-packing law if Amy Comey Barrett, President Trump’s nominee to the Supreme Court to replace Ruth Bader Ginsberg, receives Senate confirmation. The Democrats feel that Joe Biden, should he win the November 5 election, should name Ginsberg’s replacement.
The court-packing law would add additional justices onto the Supreme Court, all of whom would be appointed by Biden, which, obviously, would effectively nullify Barrett’s votes as well as the votes of other Republican-appointed members of the Court.
The controversy brings to mind that infamous court-packing scheme of President Franklin Roosevelt, which ironically the mainstream press hardly ever alludes to during the current controversy over Barrett’s nomination.
After Roosevelt assumed the presidency in 1933, he began revolutionizing America’s economic system. Here was the advent of the modern-day welfare state, whose crown jewel became Social Security, a government program that originated among German socialists in the late 1800s and that was imported into America by the Progressive movement.
The welfare-state idea
The idea of Social Security — and of the welfare state in general — was that the federal government would tax people and then give the money to seniors, which was a classic embodiment of the Marxian principle of from each according to his ability, to each according to his need. Through its powers to coercion and compulsion, the state would ensure that everyone in society was “good and caring” through this new system of mandatory charity.
Roosevelt’s “New Deal” ran counter to the principle of economic liberty that had guided America for more than 100 years. Economic liberty was a system in which everyone kept everything he earned and decided for himself what to do with it. Charity was 100 percent voluntary.
Roosevelt did not even pretend to seek a constitutional amendment to enact his welfare state. His position was that the Great Depression, as a national emergency, gave the government omnipotent powers to do whatever it needed to do to get out of the emergency. Never mind, of course, that the Constitution doesn’t say that.
The regulated economy
That was not all Roosevelt did. He also enacted regulatory laws and programs that would have been perfectly at home in fascist Italy and even Nazi Germany.
Consider, for example, the National Recovery Administration (NRA), which effectively cartelized American business and industry. To ensure that American businessmen came on board in support of his program, FDR employed a propaganda campaign called “the Blue Eagle” that would have fit perfectly within the fascist economic system of Italian dictator Benito Mussolini.
In fact, German leader Adolf Hitler himself sent Roosevelt a letter commending him on his economic philosophy and programs and pointing out that HItler too was doing the same types of things in Germany. Massive public-works projects, for example, were common under both Hitler and Roosevelt.
Unfortunately for Roosevelt, however, there were four justices on the U.S. Supreme Court — Sutherland, Van Devanter, Butler, and McReynolds — along with a fifth justice named Roberts — who determined that some of FDR’s socialist and fascist programs were in violation of the U.S. Constitution. Such fascist programs as the National Recovery Administration and parts of the Agricultural Adjustment Act were declared unconstitutional.
Roosevelt was livid. How dare these Supreme Court justices interfere with his plans for America? Who did they think there were? And what good was the Constitution if the entire country went down the drain because Roosevelt was unable to implement his socialist and fascist programs?
FDR’s court-packing scheme
After winning the 1936 election in a landslide, Roosevelt saw his chance. He floated the idea of a court-court-packing scheme, one that would enable him to appoint additional justices to the Court, which would ensure that his socialist and fascist programs would be sustained.
FDR’s court-packing scheme generated enormous opposition, including from his very own supporters. Despite FDR’s popularity, people opposed his political tampering with the judicial branch of the federal government. FDR’s court-packing scheme was not even permitted to come up for a vote in Congress.
FDR had lost the court-packing battle, but he ended up winning the war. That fifth justice — Roberts — began shifting his votes to support Roosevelt’s schemes, a phenomenon that historians call the “switch in time that saved nine.” In the 1937 case of West Coast Hotel vs. Parrish, the Supreme Court made it clear that it would never declare socialist or fascist programs unconstitutional again.
Then, as time went on, as FDR was able to appoint justices to replace those who were voting against his schemes, Roosevelt got what he wanted on a permanent basis. The economic revolution that he launched in 1933 in favor of a welfare state and a centrally managed and regulated economy became a permanent part of American life.
Today, both conservatives and liberals are fierce advocates of the Roosevelt revolution. Sadly, there are even libertarians who support Social Security, Medicare, and a centrally managed healthcare system under the rubric of “free market” or “free enterprise.”
For more information about the historical battle for economic liberty within the Supreme Court, see my book Economic Liberty and the Constitution.
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