New Deal Apologist Mike Papantonio Praises FDR Scheme to Pack Supreme Court

Leave it to a fringe leftist to tout a rarely-defended plan proposed by Franklin Roosevelt.

Angered by Supreme Court rulings that blocked many New Deal initiatives, Roosevelt in 1937 came up with what he considered an ingenious scheme to get around the court -- increasing it from 9 to 15 justices, the additional six most assuredly sharing Roosevelt's politics. (audio clip after page break)

FDR's plan met the same fate as the Hindenburg that year, though it took a bit longer to burn and crash.

It was not until this week that I ever heard any liberal defend Roosevelt's court-packing folly, at least not that I recall. Enter Mike Papantonio, attorney and "Ring of Fire" radio show co-host, filling in on Ed Schultz's radio show Wednesday.

Here's what Papantonio said in comparing the current Supreme Court with its Roosevelt-era predecessor (audio) --

We have the same kind of Supreme Court in place now that FDR had when he had to threaten 'em. He had to say, listen, you guys want to keep, you want to keep taking our legislation like Social Security and saying it's unconstitutional or safety net programs and saying it's unconstitutional, fine. I'm going to appoint some new Sup-, more, we're going to have, we're going to increase your numbers and I'm going to make all the appointments. That's what it took.

"That's what it took," Papantonio proclaims -- while neglecting to mention that it didn't actually take. Details, details.

In fact, the proposal was among the worst disasters of Roosevelt's presidency, a debacle unsurpassed until the Japanese attack on Pearl Harbor four years later.

Roosevelt may have succeeded in nudging the court in his direction but it was a Pyrrhic victory, according to historian Alan Brinkley in his 1995 book, "The End of Reform: New Deal Liberalism in Recession and War" --

The President's motives were obvious: to shift the balance of the Court decisively in his favor. But his explanation was deliberately deceptive. His message to Congress and his accompanying public statements said virtually nothing about ideology and spoke instead about "congestion," "delays," "overcrowded dockets," and "insufficient personnel with which to meet a growing and more complex business." This would be legislation, Roosevelt claimed, to improve the efficiency of the courts. Only weeks later, after the opposition had begun to coalesce, did the President  begin to speak openly of his real intentions: to bring to the judiciary younger men "with a present-day sense of the Constitution."

In one sense, at least, the Court-packing plan was a considerable success. Within weeks of the bill's introduction (and almost certainly in response to it), the Supreme Court began prudently to change course by upholding New Deal measures that months earlier it seemed prepared to invalidate. In May, a conservative justice, Willis Van Devanter, retired, giving Roosevelt the opportunity to name a sympathetic replacement, Senator Hugo Black of Alabama. The appointment consolidated the new pro-administration majority. The danger that a hostile judiciary would dismantle the New Deal and thwart all future progress had disappeared. Simply by proposing to reform the Court, the President had accelerated something close to a revolution in constitutional law -- a movement away from fixed principles and toward a more fluid view of the Constitution, a movement already in progress before 1937. By the time the bill actually came to a vote, it was largely redundant.

Poltically, however, the Court-packing plan did deep and lasting damage. Although there had been considerable popular hostility toward many conservative judicial decisions, Roosevelt's frontal attack on the Court (and his obviously insincere explanation of his purposes) struck even many of his admirers as dangerous and duplicitious. In attempting to bend the Court to his will through extraordinary measures, he seemed to be challenging the constitutional separation of powers and giving credence to the charges of "dictatorship" that had been surfacing intermittently since 1933. ...

By the middle of summer [Roosevelt made the proposal in February 1937] , congressional sentiment had turned decisively against the plan; and the rapidly emerging conservative coalition, which would do so much to frustrate the administration for the next eight years, had gained substantial strength as a result. "Only last November, Mr. Roosevelt was elected by 11,000,000 votes," the New Republic noted. "Both friends and enemies agreed that he had come to hold greater effective political power than any other man in our history. Now, incredible as it seems, he may have to accept partial defeat from a Congress that he was supposed to own, body, votes and soul."

At a moment when critics of the administration felt timid and insecure, Roosevelt had given them the confidence to strike at him. When Congress finally defeated the proposal in July 1937, the New Deal absorbed a humiliating defeat from which it never recovered. In the process, the battle destroyed the image of invulnerability that had been among the President's greatest political strengths.

Roosevelt's miscalculation cost Democrats dearly in the 1938 midterms, as did anger at New Deal policies that exacerbated the Depression and a wave of sit-down strikes after passage of the National Labor Relations Act.

Republicans gained six seats in the Senate and the governorships of Ohio, Michigan and Pennsylvania -- along with an epic 81 seats in the House.

Roosevelt did what it took, Papantonio says, to stack the Supreme Court in his favor. And no other president in the last 75 years has tried anything remotely comparable, including Barack Obama when Democrats controlled both chambers of Congress.

Jack Coleman
Jack Coleman
Ex-liberal from People's Republic of Massachusetts