In a nice coincidence, Professor Paul Carrington yesterday argued in the NY Times that, should the Court strike down President Obama's health-care legislation, Congress should "Bring the Justices Back to Earth" by adopting a modern version of FDR's Court-packing plan -- on the same day I sought to provide historical perspective on this blog about the lessons to be learned from FDR's failed Court-packing plan. Carrington's piece nicely illuminates, unintentionally, two of the points I sought to make.

First, Carrington offers the conventional law school "lesson" about the New Deal confrontation. As Carrington summarizes the story: "Congress considered a law adding justices, but the bill was defeated when the need for it was eliminated (one justice unexpectedly upheld a challenged law; another anti-New Deal justice retired)." On this politically-neutered, Court-centered story, FDR's Court-packing plan became unnecessary and faded away quietly because FDR bent the Court to his will without the legislation. As I argue, this view ignores the broader political context: the enormous political and public resistance to FDR's proposal and the destruction of FDR's larger political agenda caused by FDR's decision to invest his massive political capital in his Court-packing plan. I realize the constraints of a brief op-ed, but I nonetheless think Carrington's "lesson" from the New Deal confrontation is revealing.

Second, Carrington's piece illustrates the perverse paradox of efforts to change the Court through the political process. He suggests pushing his plan in the wake of a Court decision striking down the health-care legislation. But of course, that would make the effort look like a politically-driven assault on the Court; not only would the half of Congress that would celebrate the Court's decision rally to the Court's defense, but history suggests many moderate and independent voters (whether they agree or not with the Court's decision), would also support the Court if legislation looks like a politically-driven, outcome-oriented challenge to the Court. The most effective context for mobilizing legislative efforts to change the Court would be, in theory, a context involving a broad coalition that would cut across conventional partisan lines and would not appear to be outcome-driven, in the sense of being a response to a particular, politically-charged decision. But of course, it is virtually impossible to mobilize sufficient public and political attention to these issues in this kind of sterile environment. Hence, the perverse paradox that makes effective legislative political challenges to the Court's power hard to envision. Carrington himself, of course, is not motivated by a narrow partisan agenda to punish the Court for any particular decision; he has been pushing his Court-packing proposal, along with a number of supportive legal academics, for many years. But I take his op-ed to reflect the realization of how difficult it is to generate political energy around this issue in the absence of a triggering Court decision -- but which would then politicize the proposal and destroy its chances for adoption. Hence, the perverse paradox that insulates the Court from these efforts having any meaningful political prospect.

By the way, Jack wrote a clever, fun post a few years back that provides a counterfactual history of what the modern Supreme Court would have looked like had Carrington's proposal (which Jack supports) been adopted after WWII. See here for that thought-experiment.