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Will Obama Try to Pack the Court Too?


President Obama’s tiff with the Supreme Court over the Court’s ruling in the corporate-spending case brings to mind what President Franklin Roosevelt, one of Obama’s icons, did when the Supreme Court began declaring some of his socialist and fascist schemes unconstitutional. Roosevelt came up with a plan that would enable him to pack the Court with additional justices, legal cronies of FDR who he could count on to vote to uphold his alien schemes.

After Roosevelt assumed office in 1932, he embarked on what is undoubtedly the most revolutionary transformation of American life in U.S. history. For more than 100 years, the central notion of the American republic — that which had distinguished America from most of the rest of the world — was its free-enterprise system. It was an economic philosophy that held that people had the fundament, natural, God-given rights to engage in economic enterprise and enter into mutually beneficial economic arrangements with others, all free of government control, accumulate unlimited amounts of wealth, and do whatever they wanted with their own money.

Along came Roosevelt, who used the Great Depression as a means to adopt the socialist and fascist systems that were proving so popular in Europe, especially Italy, Germany, and the Soviet Union. This included adoption of socialist transfer programs, such as Social Security, by which the state took money from one person and simply transferred it to someone else. It also included government control over economic activity, exemplified by FDR’s National Industrial Recovery Act, which cartelized American industry, and the Securities and Exchange Commission, which placed the stock market under federal control.

Roosevelt sold this new-fangled system to the American people by employing two means of deceit. First, he argued that the Great Depression reflected the failure of America’s free-enterprise system, when in fact the Great Depression actually reflected the failure of America’s Federal Reserve System, a governmental system of monetary control adopted in 1913 that violated the principles of free enterprise. Second, he argued that his schemes were designed to save America’s free-enterprise system when in actuality they abandoned it.

Of course, whether America should adopt a free-market system, a socialist system, or a fascist system was a political decision. But whether a socialist or a fascist system could pass constitutional muster was a legal issue, one that the Supreme Court had to address when pertinent cases reached the Court.

Much to the chagrin of Roosevelt, the Court began declaring some of his alien schemes in violation of the Constitution. Like Obama today, Roosevelt went on the rampage against the Court for daring to stand in his way by declaring his programs illegal under our form of government.

Given Roosevelt’s dictatorial proclivities, he didn’t stop at simply criticizing the Court. He came up with a plan to alter the make-up of the court, the most important of which was his proposal to expand the number of justices serving on the Court. FDR proposed appointing a new justice for every sitting justice who was over 70 years old. He had carefully calculated that this would enable him to appoint a sufficient number of new justices who would provide him with the number he needed.

FDR tried to deceive Congress and the American people by claiming that the sole purpose for his plan was to assist an over-worked Supreme Court. Much to his displeasure, the Chief Justice of the United States responded by showing that there was no backlog of cases in the Court.

To the everlasting credit of the American people, there was a tremendous national outcry against Roosevelt’s court-packing scheme. Despite the economic distress that people were suffering during the Great Depression, they did not like FDR’s tampering with our nation’s constitutional system, especially when the tampering was intended to give the president more power to run roughshod over the U.S. Constitution.

FDR’s court-packing scheme went down to defeat. But Roosevelt ended up winning the war anyway. With Justice Owen Roberts’ “switch in time that saved nine” and retirements from the bench, FDR was able to secure a majority on the court that would vote to sustain any violation of economic liberty he proposed.

Will Obama follow in the footsteps of his icon and come up with his own plan to pack the Court? Anything is possible. Let’s just hope that if he does, the reaction of the American people will be the same as it was in 1937.

This post was written by:

Jacob G. Hornberger is founder and president of The Future of Freedom Foundation. He was born and raised in Laredo, Texas, and received his B.A. in economics from Virginia Military Institute and his law degree from the University of Texas. He was a trial attorney for twelve years in Texas. He also was an adjunct professor at the University of Dallas, where he taught law and economics. In 1987, Mr. Hornberger left the practice of law to become director of programs at the Foundation for Economic Education. He has advanced freedom and free markets on talk-radio stations all across the country as well as on Fox News’ Neil Cavuto and Greta van Susteren shows and he appeared as a regular commentator on Judge Andrew Napolitano’s show Freedom Watch. View these interviews at LewRockwell.com and from Full Context. Send him email.