Who Won the New Deal Confrontation Between FDR and the Court: The Presidency or the Court?

Rick Pildes

As supporters of President Obama in the aftermath of the health-care arguments continue to urge him to confront the Supreme Court more aggressively (see E.J. Dionne, here, and lawyer Marvin Ammori, here) , and as analogies to FDR's confrontation with the Court continue to mount, I want to continue to provide more of a revisionist historical perspective on the New Deal confrontation. In an earlier post, I noted that this confrontation occurred at a moment at which FDR was perhaps the most popular President in modern history and the Court was striking down a staggering array of federal statutes and presidential actions. Yet FDR nonetheless lost the confrontation, at least in the sense that his Court-packing legislation was defeated.

I now want to turn to the aftermath of the confrontation and ask: which institution actually won the Court-packing fight? The conventional wisdom among constitutional academics, focused narrowly on the Court itself, is that FDR lost the battle, but won the war, since the Court soon acceded to the New Deal’s constitutionality. On this standard law-school narrative, FDR won the war because his attacks on the Court forced the Court to back down and change constitutional direction. Here is a different perspective that I provide in my article, Is The Supreme Court A "Majoritarian" Institution?:

For those inclined to think the Court backed down because of the political pressure FDR brought to bear, it is important to keep in mind that FDR was able to make seven appointments to the Court between 1937 and 1943. Thus, we cannot know whether the Court acceded to the New Deal due to the pressure of public opinion and presidential attacks or simply the fortuity that FDR made so many appointments in such a short period.

Of course, President Obama is not proposing legislation challenging the Court, let alone any measure as confrontational as the Court-packing plan. And public criticism of the Court's decisions, by the President or anyone else, is legitimate in a democracy. But while it's common wisdom to believe FDR defeated the Court, it might well be that the right perspective is that the Court defeated FDR -- and there is no doubt that the Court's independence and public support was enhanced as a result of this fight. As a political matter, then, when Presidents take on the Court, even in the mild form of criticizing the Court's decisions, Presidents walk a delicate line. For better or worse, even among those who disagree with the Court's decisions, there is a surprisingly deep reservoir of support for the Court as an institution (I will look at some of the data in another post). That doesn't mean Presidents shouldn't take on the Court; it does mean they should do so with adequate historical appreciation for the nature of the battle they are joining.