Monday, April 09, 2012
Who Won the New Deal Confrontation Between FDR and the Court: The Presidency or the Court?
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.
FDR lost the battle and won the war by filling the Court with his nominees, nominees who shared his overall vision that the "horse and buggy" vision of CC etc. was wrong.
The problem with FDR was not his comments criticizing the rulings (closer to the issue here) but his attempt to go a step further. Obama is not doing this. He is not, e.g., trying to strongly end the filibuster to get more of his nominees on the bench (itself much less than FDR's move).
Presidents have criticized the SC's rulings for years. It is a major theme for Republicans. Reagan personnel continuously pushed the SC to overturn Roe v. Wade, even when the cases involved minor points. What exactly is Obama doing as compared to that?
I think that Rick is basically correct. Those who call for Obama overtly to "attack the Court" in a full-throated way (as against suggesting that he will, if given the opportunity, continue to appoint non-reactionary justices), are suffering, I suspect, from living in an echo chamber created by talking too much to like-minded people. Attacking Paul Ryan is one thing, going after "the Court" is another. I personally regret this, inasmuch as I would love to see a mainstream authority figure go not only after the Court, but also our radically defective Constitution. But I recognize the limits on a vulnerable President seeking re-election and scarcely expect him to lead the charge against the Constitution.
If Obama mentions the Court, I'm sure it will be in the context of Citizens United, not the health care law.
I'm pleased that Prof. Pildes has opened up this post for comments. My comment:
"Alas, Prof. Pildes' current post on this topic does not provide for comments. I'm not suggesting that he open that post to comments. Rather, perhaps Prof. Gerard Magliocca might consider posting on this topic, as he has done some serious research on the subject, including his 'Court-Packing and the Child Labor Amendment' in 27 Constitutional Commentary No. 2, Fall 2011, beginning at page 455."
at his earlier post was premature. But I repeat it here for the reference to Gerard's article with respect to Sandy's comment that he " ... would love to see a mainstream authority figure go not only after the Court, but also our radically defective Constitution." Gerard's article has an interesting discussion on the pre-New Deal relative ease in passing amendments to the Constitution that tightened up during the New Deal with the proposed Child Labor Amendment, triggering FDR's concern with the difficulties under Article V. perhaps FDR's reason for the Article III route proposed in his famous 1937 Fireside Chat. According to Gerard: "In that speech, FDR said that '[n]o amendment which any powerful economic interests or the leaders of any powerful political party have had reason to oppose has ever been ratified within anything like a reasonable time' and he observed that thirteen states with just five percent of the population could veto any proposal." [page 481]
I don't know if Obama plans to propose an amendment to address Citizens United or any other amendment during the upcoming campaign. But just why shouldn't Obama be critical of the 5-4 Citizens United decision and of what may possibly be a similar result for the ACA appeals? Obama's critiques/challenges differ from FDR's situation. Joe makes the point of Reagan's issues with the Court for Roe v. Wade. E. J. Dionne, Jr. made the point in his recent column that Obama is not, should not be, a wimp in going after the Court, which is what Republican incumbent/challengers for the presidency have been doing for years in the attacking the Warren and Burger Courts.
Those who advocate Mr. Obama going to rhetorical war with the Supreme Court need to define the objective of that war.
If the objective is to intimidate the Supreme Court into finding Obamacare constitutional, then as Rick's post shows, there is little New Deal precedent that such a war works.
On the other hand, if the objective is to reelect the President, the 1936 election suggests this approach might work if the President and his policies are popular.
In this case, voter approval of Mr. Obama is still sub-50% and voter disapproval of Obamacare is a plurality. Indeed, in the Rasmussen poll, voter approval of the Supreme Court nearly doubled after the Court suggested in oral arguments that it might find Obamacare unconstitutional.
This does not appear to be a war the President wants to wage.
So is our yodeler encouraging Obama with this:
"This does not appear to be a war the President wants to wage."
to wage such a "war," as our yodeler describes? Were Republican incumbent/challenger presidents waging "war" against the Court in challenging the Warren and Burger Courts? Or is our yodeler fearful that real citizens will unite despite the deep pockets of corporate "citizens"?
"Were Republican incumbent/challenger presidents waging "war" against the Court in challenging the Warren and Burger Courts?"
They sure did and it worked electorally on issues like prayer, abortion, racial preferences, busing and the right to keep and bear arms.
When the judiciary is advancing an unpopular agenda, it can be politically advantageous for a party to attack that agenda and campaign on appointing judges who will not advance their own agenda.
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Can someone inform me as to the real utility of spamming 'comments' trying to gin up hits/business? Do they really work? (I realize this is close to almost every woman's question: "Does anyone actually take up these guys screaming out of their cars?")
CTS: social media spamers are using the same strategies as they use(d) for email spam and phishing. They drive traffic to the websites they control; these sites may be in legit domains they have hacked into, which may redirect the traffic elsewhere. From there they harvest personal info for identify theft, credit/debit card theft, draining your bank accounts, signing you up to bogus services that bill you once a month, getting your email address book to attack your friends in email that appears to be coming from you, taking over your PC to be used in other later attacks, and so on. There's an entire economy based on this; needless to say, most of that economy lies outside the law.
If you want more I recommend this paper
OK sorry, corrected link
Oh...kay, the blogger software is mangling the link. You'll have to cut and paste:
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