Anthony Kennedy, Franklin D. Roosevelt, and Reshaping the Supreme Court

By Kaleena Fraga

On February 5th, 1937, President Franklin Delano Roosevelt announced that he would attempt to expand the Supreme Court bench. His announcement incited instant outrage–Roosevelt’s opponents accused him of trying to pack the court so that he could push through his New Deal policies. Roosevelt’s plan was radical—he sought to completely reshape the court—but the idea of changing the number of justices is not, and indeed, Congress has adjusted the size of the Supreme Court six times in American history.

Originally, the Judiciary Act of 1789 ruled that there would be six justices. But when Thomas Jefferson swept to power in a Democratic wave that also put his party in Congress, the lame-duck Federalist Congress voted to reduce the number of justices to five. When the next Congress was sworn in, they repealed this decision, keeping the court at six justices. In Jefferson’s second term, they added a seventh, affording Jefferson the opportunity to appoint someone to the bench.

Thirty years later the size of the court changed again. Congress increased the court to nine justices, which gave Andrew Jackson the opportunity to hand-pick the two additions to the Supreme Court.

Change came again in the 1860s. This was a a turbulent time for the nation, and the Supreme Court. In the midst of the Civil War the court expanded yet again to an all-time high of ten justices–this time to protect an anti-slavery/pro-Union majority. But when Andrew Johnson became president following Lincoln’s assassination, the Republican Congress reduced the size of the court to protect it from a Democratic president. The court shrank from ten justices to seven. Congress effectively removed Johnson’s ability to appoint any justices. Then when Ulysses S. Grant became president in 1868 after Johnson left office, Congress voted to expand the court to nine justices. For many people in 1937 when Roosevelt made his pronouncement, nine justices felt like a norm—like an unchangeable fact of the judicial system.

Roosevelt’s plan, however, was not as simple as expanding the court. He wanted to enforce rules to make justices retire at 70, and, if they refused, give himself the power to appoint associate justices who could vote in their stead. This would effectively give him the power to sculpt the court, and to ensure the legality of his New Deal legislation.

FDR had had a productive first term, and had won reelection by a stunning margin. (He had won the largest popular vote margin in American history, and the best electoral vote margin since James Monroe ran unopposed). But the justices on the Supreme Court had publicly expressed opposition to Roosevelt’s policies. Because six of the nine were over 70, Roosevelt’s plan would boot them off the bench. His argument was that they had grown too old to do their work, and that they had fallen behind. A lifetime term, Roosevelt said, “was not intended to create a static judiciary. A constant and systematic addition of younger blood will vitalize the courts.”

But Roosevelt’s statement that the Court was behind on its work wasn’t true. His plan was met with roaring opposition as letters poured in from around the country. Even his vice president, John Nance Gardner, expressed displeasure as the plan was read aloud in Congress, holding his nose and making a thumbs-down gesture. In the Senate, Roosevelt could only gather 20 votes for his plan.

Roosevelt wasn’t able to make any changes to the Supreme Court. Yet, perhaps because of his maneuvering, he convinced one justice, Owen Roberts, to switch his vote to support many New Deal policies.

Given the outrage at the time of Roosevelt’s proposal, and it’s ultimate failure, it’s no wonder that the idea of changing the composition of the court is often met with distrust and derision. But there is nothing in the Constitution that says the Supreme Court has to stay at nine justices, and, indeed, it has fluctuated between six and ten throughout American history. Perhaps Roosevelt could have succeeded if he had merely attempted to expand the Court as Congress did under Jefferson, Jackson, and Grant. 

Today, with the retirement of Justice Anthony Kennedy, the Supreme Court’s swing vote, the idea of changing the composition of the court has begun to gain traction among Democrats. As many liberals look down the barrel of thirty or forty years of conservative Supreme Court decisions, expanding the court to allow the appointment of more liberal justices could be the remedy they are seeking. 

 

America Needs a John Quincy Adams

By Kaleena Fraga

John Quincy Adams, America’s sixth president and the son of the nation’s second, had a reputation as a prickly, aloof man. He was a one-term president and by no means a popular one–yet he came to be seen as a man of iron principle and honesty, even in the face of political pressure from his own party. Politicians of his ilk are largely missing from the political landscape today.

I: Switching Parties

Adams, the son of one of America’s most prominent Federalists, entered the Senate in 1803 as a Federalist himself. Yet he remained distant from his colleagues. In an era of hyper-partisanship in which Federalists accused the Republicans of colluding with France, and the Republicans accused the Federalists of colluding with England (sound familiar?) Adams stubbornly trod his own path. He supported both President Jefferson’s Louisiana Purchase and the administration’s hardline on England, which his fellow Federalists opposed. His father, former president John Adams wrote:

“You are supported by no Party. You have too honest a heart, too independent a Mind and too brilliant Talents to be sincerely and confidentially trusted by any Man who is under the Dominion of Party Maxims or Party Feelings.”

His stubborn refusal to fall in line with the Federalists, and his support of Jefferson, cost Adams his seat in the Senate, his place in the party, and many friends back in Boston. To Adams, it was a matter of principle, and a matter of what he thought was right and wrong according to the U.S. Constitution.

This sort of political courage is rare in Washington today. To be fair to today’s politicians, the landscape has changed. There is pressure from lobbyists, constituents on social media, and from within the party itself to toe the party line. Political purity tests are the cause celebre of today, and politicians that stray too far from the party line face possible challenges from the left or right of their own parties. It’s doubtful that Adams–with his iron will and stubborn personality–would be swayed. But it’s also likely that he’d never make it to Congress (or the presidency) in the first place.

II: As President 

John Quincy Adams’s presidency spanned a divisive time in American. After the relative political tranquility of Jefferson, Madison, and Monroe’s presidencies–“the Era of Good Feelings”–, in which the Republicans enjoyed almost unanimous support, Adams entered office as the country’s political unity began to fray. The nature of campaigning had also begun to change–in the day of George Washington, a man had to practically be dragged to the presidency by his fellow citizens. In John Quincy Adams’ day, it was becoming permissible for a man or his friends to campaign actively.

The electoral system in America of the 1820s had begun to evolve as more states joined the union, and although there wasn’t a uniform way of voting, regular people had more of a sway than ever before. Adams’ political rival, Andrew Jackson, supported this democratic uprising. The fact that Adams entered office in 1824 under the auspice of a “corrupt bargain”–Jackson won the most electoral votes, but not a majority, so the election was sent to the House of Representatives where Adams was alleged to have struck a deal with Henry Clay–only increased the divide between the two parties.

John Dickerson’s piece for the Atlantic The Hardest Job in the World postulates that the presidency has become a beast unmanageable for one man, and that the current system of campaigning rewards skills that aren’t necessary applicable or important to the presidency once he/she is in the office. Campaigning rewards skills like charisma and debate; the office requires management and governance. Adams would probably agree with Dickerson–part of his cohort’s campaign against Jackson was that the fiery formal general couldn’t spell and lacked the necessary political experience to be president. Adams likely couldn’t be elected today, and perhaps was the last person to be elected based on political merits, rather than his power of campaigning. James Traub, an Adams biographer, notes of Jackson’s victory over Adams in 1828: “Of course, the whole episode was founded on the archaic assumption that Americans would not elect a man who couldn’t spell or hold his temper.”

III: Post Presidency

Adams served a single term as president–becoming only the second man to be voted out after four years, after his father, John Adams. But Adams refused to be cast into political obscurity. As part of his upbringing in Massachusetts, his parents had always encouraged him to find ways to be useful. “Usefulness” is also a reason James Comey invoked to justify writing his book after he was fired by Donald Trump.

When the opportunity rose for Adams to join the House of Representatives, he took it. Although many of his friends and family feared it would be degrading for an ex-president to join a lower chamber, Adams refuted this logic, saying it wouldn’t be at all degrading to serve “as a selectman of his town, if elected thereto by the people.” He joined the House in 1830 and would serve until his death in 1848–Adams literally collapsed on the House floor and died in the Speaker’s office.

As a member of the House, Adams took on slavery as his cause. Although he never labelled himself an abolitionist–at the time, abolitionists were hated by both the North and South as dangerous rabble rousers–Adams became a thorn in the side of the “slavocracy.” He insisted on introducing petitions to the House which raised questions about slavery–and continued to do so even after the passage of the gag rule, which forbid any such thing on the House floor. A rival Congressman once tried to bait Adams, reading back a line that he’d spoken to a group of black citizens: “The day of your redemption is bound to come. It may come in peace or it may come in blood; but whether in peace or blood let it come.” The Congressman read the line twice. He reminded his colleagues what this meant–emancipation and maybe civil war. Adams replied:

“I say now let it come. Though it cost the blood of millions of white men let it come. Let justice be done though the heavens fall.”

Although the political climate was not at all amenable to this sort of thought–indeed, at the time such a statement was shocking, and Adams received his fair share of death threats–Adams never cowered from a controversial political issue that he thought was right, or wrong. He challenged the slavocracy as a Congressman and as a lawyer, when he defended the men and women of the Amistad and won their freedom. 

In today’s increasingly partisan climate, where politicians are falling over themselves to move further to the left or right in order to move up the ladder, a politician like Adams, who sticks to his principles even under immense political pressure, would be a welcome change.