The plan called for allowing the president to appoint an additional justice to the Supreme Court for every sitting justice over the age of 70. Given the makeup of the Supreme Court at the time this would have allowed Roosevelt to appoint an additional 6 justices.
As the constitution made no provision for the number of justices on the Supreme Court, Roosevelt's scheme was not seen as overtly unconstitutional. It was, however, seen a brazen attempt to circumvent the constitution's inherent system of checks and balances and it was met with immediate criticism.
Jeff Shesol, author of Supreme Power: Franklin Roosevelt v The Supreme Court, stated that upon learning of FDR's plan, even members of his own administration reacted with incredulity. "John Nance Garner, who was Roosevelt's vice president, went back with him to Capitol Hill, stood in the well of the Senate and, as the plan was read aloud to the senators, Garner held his nose and gestured thumbs down,” said Shesol.
As debate over FDR's court packing scheme intensified in the ensuing months, the public grew increasingly unsupportive of his idea. Although personally popular, FDR’s attempt to pack the court with political cronies was seen as far more offensive than was the court having invalidated many of FDR’s legislative undertakings.
In an article for the American Political Science Review, author Gregory Caldeira wrote that the central debate had less to do with the specifics of New Deal legislation, rather, "FDR's proposal forced the public to choose between the widely approved policies of an extremely popular president and the institutional integrity of a controversial Supreme Court."
The public ultimately supported the maintenance of governmental checks and balances and soured on FDR’s attempt to inflate the power of the presidency at the expense of the judiciary.
Following a series of influential events that included the retirement of Justice Willis Van Devanter as well as the Court’s validation of the Wagner Act, a significant piece of Roosevelt’s New Deal, an amended version of the Judiciary Reorganization Bill was passed on August 26, 1937, having been stripped of its most contentious elements, including the increase in Supreme Court justices.
President Obama, himself enjoying far less public support than FDR in his day, ought take a hard look at history and consider a renewed attempt at building consensus through leadership rather than opting for the imperious approach of governing through executive fiat.
Pens and phone calls may allow for the easier implementation of Mr. Obama’s agenda but it would be inconsistent with the Founder's intent of a government predicated upon, among other things, the separation of powers.
Understandably, the public at times becomes frustrated by warring factions in Washington but it will always opt on the side of maintaining institutional integrity over the whims of a frustrated executive. Mr. Obama should accept that reality and understand that leading a divided government often requires conciliation, not an aggrandized executive.
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