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History teaches that tinkering with the judiciary for political reasons is dangerous

Judge Andrew P. Napolitano on

Since the death of liberal Justice Ruth Bader Ginsburg and the determination of President Donald Trump to fill her Supreme Court seat before Election Day with the traditionalist Judge Amy Coney Barrett, the concept of court packing has reared its head. The phrase "court packing" is a derogatory reference to legislation that alters the number of seats on the Supreme Court to alter its perceived ideological makeup.

The origins of modern court packing are from the depression era when President Franklin Delano Roosevelt sought to expand the court from nine to 15 by adding a new justice for every sitting justice who declined to retire upon reaching his 70th birthday. FDR offered the plan in the spring of 1937, shortly after he was inaugurated to his second term. He had just been reelected in a landslide and was frustrated that much of his legislation had been invalidated by the Supreme Court as beyond the powers of the federal government.

FDR's stated reasoning was that the court had a "congestion of cases" since its nine justices were, he claimed, slow to address the appeals that came before them, and a larger number of justices would make for a more efficient court. Few believed this subterfuge. If nine were too slow, then 15 would be slower.

FDR really wanted more pro-New Deal justices who would ratify his radical proposals to centralize, plan and control the economy. Nevertheless, his court packing was immensely unpopular and the plan never made it out of the Senate Judiciary Committee.

But historians have debated whether the proposal actually worked, and here is why. Before FDR's plan died, one of the conservative justices, Owen Roberts, had a change of heart on the constitutional scope of the federal government, and he began voting with the court's liberal wing to uphold New Deal legislation against constitutional challenges.

Though the case in which Roberts broke ranks involved a Washington state minimum wage law -- which the court upheld 5 to 4 with Roberts joining the liberals -- the hook on which Roberts hung his constitutional hat was the Commerce Clause. That clause gives Congress the power to regulate commerce among the states.

 

Prior to the New Deal, congressional power over commerce was generally interpreted as James Madison intended it. Congress can regulate -- that is, keep regular -- the movement of goods over intestate borders among merchants and bar the states from favoring their own merchants.

After Roberts' change of heart, a majority of the court began to view the commerce power in a wildly expansive way, nowhere justified by the language of the Constitution or its original understanding. The new -- and regrettably, current -- view of Congress' commerce power is that the Constitution empowers Congress to regulate anything that affects interstate commerce, even private personal economic behavior too minuscule to measure, behavior that is not commercial in nature and behavior wholly within one state.

Roberts' shift, which he never justified publicly, was coined "the switch in time that saved nine." FDR could not have known that his court packing stunt would have so terrified a conservative justice as to turn him into a big government liberal. But it did.

Soon, retirements of justices allowed FDR to fill five vacancies on the court during his 12 years in office, and the landscape of American constitutional law would never be the same.

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