Steve Isaacs says that President Obama should take advantage of the Constitution’s failure to fix the number of Supreme Court justices and do an end-run around the court that dealt the McCain-Feingold campaign finance law a death blow last year. Why? Because he and other liberals fear that the courts might weigh in against the administration’s radical reformation of health care or its proposed carbon cap-and-tax plan.
Sound familiar? It ought to. FDR, President Obama’s closest parallel in recent history, tried to do the same thing in order to bring to a halt the inexorable rulings that would have repealed most of his precious New Deal programs.
Roosevelt sought to appoint an additional justice for each incumbent justice who reached the age of 70 and refused retirement, with a maximum size of 15 justices. The phrase "packing the court" became the pejorative that turned the public against FDR’s plan.
The actual plan wasn’t pushed, however, because of changes on the court. Justice Owen Roberts – seemingly intimidated by popular approval of the New Deal – voted with liberals in a decision supporting Washington state’s minimum-wage law. Roberts’ change of heart was called "the switch in time that saved nine."
Obama can give himself a fighting chance by changing the rules of the game, just as they were changed for other presidents in the 1800s. He should forget bipartisanship and work with congressional Democrats to name three new justices to the court to meet the challenges he faces.
It would be a tumultuous fight, but it would be for a change we could believe in.
This is the unmitigated gall of liberal certainty, a brand of poison so toxic this country would certainly die if men like Isaacs were allowed to govern it for even one term.
Far from being an example to imitate, FDR’s brass-knuckled threat to castrate the Supreme Court is one of the most egregious abuses of presidential power recorded in our nation’s history. That FDR ultimately did not follow through on his threat is of no consolation: His brazen intimidation of the court had the effect of changing its rulings in several cases having to do with the welfare state, something that plainly exceeded his authority as head of the executive branch.
Likewise, President Obama would be well-advised to keep the practical limits of his power, the insignificance of his legislative agenda in the grand scheme of things, and the overriding importance of federal checks and balances in the forefront of his thoughts before he considers any plan to gerrymander – or bully – the Supreme Court into compliance.