The American people expected Franklin D. Roosevelt to bring an end to the Great Depression. But his administration struggled to do so and like most politicians—and FDR was shrewder than most—he found ways to blame others for his failure.
One particular bogeyman was the United States Supreme Court, which kept finding FDR's recovery measures unconstitutional and was, therefore, easy to blame for the continued economic difficulties.
By 1937, FDR had had enough. He proposed a plan to "pack the Court" with new Justices he would appoint and whom the Senate would confirm to serve alongside those already on the Court.
In the short run, this gambit failed. The public reacted to it adversely and, at election time, gave the Democrats their worst electoral results in nearly a decade. Voters recognized that changing the number of Justices on the Court to change the thrust of their decisions was cheating. The Constitution, as they understood it then and as is still true today, says what it means and means what it says. FDR's attempt to load the Supreme Court with members who would rubber-stamp his legislative program, regardless of its constitutionality, violated the precepts on which the nation was founded.
In the long run though, FDR won. The Justices who stood in the way of New Deal reforms started to retire, and were replaced by men who found the market interventions at the heart of the New Deal more constitutionally consistent than their predecessors had.
History does have a way of repeating itself. The progressives who've now seized control of the Democratic Party see the current Supreme Court as standing in the way of what they want to accomplish. To them, the Court is a bastion of conservatism and originalist thinking that will use its power to defeat all efforts to expand the size and scope of the modern American welfare state.
The only way around that obstacle is to pack the Court with liberals who agree that the Constitution is a living, breathing document open to interpretations that must change with the times.
There are two ways progressives can do that. One is to enlarge the Court, as FDR tried and failed to do. The other is to discredit the Court or at least enough of its sitting Justices to force resignations or impeachments.
That's why Rep. Alexandria Ocasio-Cortez (D-N.Y.) has promised to file articles of impeachment against the Justices who sided with the majority in the Court's limited ruling on presidential immunity from criminal prosecution. She and her allies have distorted the impact of that ruling to the extreme so they can argue the Court has abandoned its responsibilities or has become hopelessly corrupt.
If they can do this, Ocasio-Cortez and others likely reason, then they can open up a few seats Joe Biden can fill with new Justices who will vote to overturn Dobbs v. Jackson, District of Columbia v. Heller, Loper Bright v. Raimondo, and all the other decisions they don't like.
We've seen this before, too. Conservatives didn't like Chief Justice Earl Warren and often talked of impeaching him. They even wrote songs about it, but none of that went anywhere. The Court finally changed, adopting a more originalist philosophy, but only after a long and arduous process that took decades.
Liberals can't wait that long. They feel they have a moral imperative that allows the ends to justify the means. Rewriting the rules is okay, just like rewriting the Constitution through judicial decisions rather than using the amendment process is okay. It's quicker and easier, and they do it well, while going through regular channels often doesn't get them where they want to go.
Don't be surprised if you soon hear crowds of leftists calling for Chief Justice John Roberts' resignation. One way or another, count on them to subvert existing democratic norms to try and get their way. They'll either drive public confidence in the Court down to a point where they believe the public will demand the appointment of three or four new Justices, or they'll try to follow through with their threats to remove Justices Thomas, Alito, and Roberts so they can establish a liberal majority with new Justices of Biden's choosing.
They can try, but most Americans who are not part of the coastal elite still value things like rules and fair play. They'll recognize these efforts to change the Court's composition for what they are. In this country, we don't let people win by cheating.
Newsweek Contributing Editor Peter Roff is a veteran journalist who appears regularly on U.S. and international media platforms.
The views expressed in this article are the writer's own.
Uncommon Knowledge
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Newsweek is committed to challenging conventional wisdom and finding connections in the search for common ground.
