Full Court Press

A fascinating review in The New Republic from (my friend) Richard Posner of Jeff Shesol's Supreme Power: Franklin Roosevelt vs. the Supreme Court.

As usual, Posner has some tart words for both left and right. He parallels FDR's time with Obama's, and notes both promoted programs at odds with policy goals--they tried to spur an economic recovery while proposing reform that would stunt or reverse it.

Meanwhile, his jaundiced or realistic view (you choose) of the Courts will not please the right:

Given the potential for political instability and social unrest if the entire New Deal program was killed, Roosevelt was right to strike at the Court, especially as he had a more sensible conception of the Constitution than that of the conservative justices then, or their counterparts now, or of liberal justices beginning with the Warren Court of the 1960s--a conception of a Constitution flexible enough to permit the government to meet the needs of modern society that the Framers of the Constitution could not have foreseen.

While the right touts originalism and impartiality, Posner states:

(Judges like to refer to the legislative and executive branches of government as “the political branches,” as if the judiciary were not a political branch as well.) [...] The Wall Street Journal’s comment on the decision invalidating the National Industrial Recovery Act was that “the Constitution has survived the depression.” Constitutional idolatry is a platform of today’s right wing as well; it is the sophisticated version of biblical inerrancy

FDR's court-packing plan failed, but at the same time, and not coincidentally, the Court started bending to his will. Would it have been a good thing if he'd packed the court?

It would have increased turnover on the Court, reduced the average age of justices, made an appointment to the Court less prestigious, and made the justices more cautious about bucking strong political forces, because they would have learned that Congress was willing as well as able to rein them in. We would probably have been spared the excesses of the Warren Court, which turned Roosevelt’s idea of the “living Constitution” on its head: where Roosevelt wanted the Court to stand aside so that the government could deal with the distinctive problems of modernity, the Warren Court responded to the surging crime rates of the 1950s and 1960s by increasing the rights of criminals.