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Liberal_Jihad_Cover.jpg Forward USA

Monday, January 17, 2005

Echoes of FDR’s Court-Packing Scheme

Not even the god of liberal-socialism could get away with manipulating the tenure of Supreme Court Justices for political purposes.

The Volokh Conspiracy, in a posting of January 16, 2005, reports on Linda Greenhouse’s NY Times article on Supreme Court term limits.

Since the New Deal in the 1930s, a liberal-socialist constitutional theory has held that Darwin’s evolutionary ideas effect constitutional amendments without the need to follow the procedures of Article V of the Constitution.  Liberal-socialist dogma holds that everything is in continual flux, ranging from biomorphs to standards of morality and constitutional principle.  For liberals, the only standard is public opinion.  Thus, if changing public opinion supports new social-justice standards such as abortion or same-sex marriage, then it has, ipso facto, become unconstitutional to legislate against them.

There is one vital qualification to this doctrine: only liberal-socialist opinion counts.  Red-state beliefs are by definition ignorant reactionism, thus are to be ignored.  The re-election of George W. Bush with strong support for religion and morality must be circumvented by the Senate’s Democrats, because religion and morality are impediments to Progress.

In the 1930s, the situation was reversed.  It was legal theorists like Democrat Louis Boudin who inveighed against “Government by Judiciary.”

During his first term, from 1933 through 1936, FDR had been infuriated by a Supreme Court that was, on balance rather traditionalist, one that had repeatedly declared unconstitutional the New Deal’s major essays at socialist state planning. 

Principal among those rebuffs was the National Recovery Administration (NRA), which was modeled directly on Mussolini’s Fascist state corporatism.  The NRA followed Mussolini’s pattern of creating industry groups, in which government regulators worked with representatives of business and labor unions to set production quotas, prices, and wages.  Mussolini had told news reporters that he believed that the NRA would not work, because it was too harsh, compared to the agencies of the Fascist state.

In 1937, buoyed by a resounding reelection majority, President Franklin Roosevelt attempted to bend the Supreme Court to his will with his notorious court-packing scheme.  This maneuver was so outrageously blatant that even liberal-socialist Democrats denounced it as an attempt to make the Supreme Court a rubber stamp for the executive branch.

As with the current proposals, Roosevelt’s fulcrum was the advanced ages of the Supreme Court Justices, dubbed by the press the Nine Old Men.  Working in secret with Connecticut’s Homer Cummings, the Attorney General, FDR proposed to add three younger Justices to the Supreme Court, ostensibly to lighten the work load on elderly Justices.  The real intent, transparent to everyone, was to guarantee a majority for all New Deal state-planning initiatives.

After a bitter fight, Roosevelt went down in defeat on the proposal, with solid opposition led by his own party, in an era when Democrats still respected Constitutional traditions.