Dispatch: FDR and the Supremes


We have worked ourselves into such a state of polarization that the left is openly accusing the right of fascism, while the right accuses the left of communism. The ideologies are actually inconsequential. Fascism and communism as epithets are ideologically meaningless but filled with significance as a mortal threat to the republic. That’s what we mean when we affiliate our opponents with ideologies we probably really don’t understand: if they gain power we are doomed.

Which highlights I think one of the gravest threats to the republic. If we had any sense of history we would know that the tenor of today’s politics is not exactly new. The danger is not that we are on the verge of slipping into some right or left tyranny because of the willful malice of THEM, but that we are so illiterate in the history of our own republic we fear that what is happening now is unique, to the same destructive end. As a modern bard observes:

Come on children
You’re acting like children
Every generation thinks
Its the end of the world

If we were aware of our own history we would see this in action today.

First, the historical context.

In 1932 Franklin Roosevelt was elected President of the United States on a promise of a “New Deal” to relieve the suffering of and bring an end to the Great Depression. Although our collective memory ascribes success to FDR in fact the depression wasn’t ended and the worldwide capitalist system restored until after World War II. But the various measures enacted by the Federal government during the Roosevelt administration did bring relief to a lot of people, and the New Deal was wildly popular. He won re-election in 1936 by an electoral college landslide only exceeded by the election of James Monroe in 1820, who ran unopposed.

But Roosevelt knew that all of the programs he had enacted were in danger of being declared unconstitutional by a conservative leaning Supreme Court. In fact the Court did declare fundamental agencies of the New Deal: The National Recovery Administration (NRA) and the Agricultural Adjustment Administration (AAA) unconstitutional. FDR and the supporters of the New Deal, both Democrat and Republican, were incensed.

Roosevelt responded with a proposal to reshape the Court, the Judicial Procedures Reform Bill of 1937. Roosevelt claimed the age of a number of justices made them unable to carry out the responsibilities of the bench, and proposed adding younger members to the court with full voting rights to counterbalance the mentally feeble oldsters, the “nine old men.” Of course this was a practically undisguised effort to “pack the Court” to shore up support for the New Deal, as it subsequently became known as Roosevelt’s Court Packing scheme.

As it happens the Court was shortly reshaped by the retirement of some justices and the ideological surrender of others and the Court Packing scheme went down in flames. Roosevelt lost. But he also won. One of FDR’s proposals that survived Court scrutiny because of this reshaping was Social Security. But what is important for us today is what it tells us about the role of the Supreme Court in the United States Federal system.

Today the Supreme Court handed down two decisions. One of these prevents the Trump Administration from adding a citizenship question to the upcoming 2020 census, the other declares that the Federal courts have no jurisdiction in partisan gerrymandering in the States. The first is a “win” for liberals and a slap in the face to the Trump camp, the other leaves the left outraged and the right apparently vindicated.

Arguing the legal and constitutional merits of these two decision will doubtless continue, perhaps ad infinitum, but the fact is the Court worked in the same way it was intended to work and has always worked. This is not to say that the Court can’t get it wrong: the Dred Scott decision, Plessy vs. Ferguson, and Koromatsu are glaring examples. But it is to say that the Court places an important check on the powers of the other two branches and their attempts to commandeer the Federal government to achieve their ends. The decisions today show that even though individual members of the court may be ideologically motivated, as a whole the Court’s role is to uphold the rule of law. As imperfect as it is, it performs a vital role in saving us from right or left tyranny.

Those who saw their position fail today are not without recourse. Proponents of the citizenship question have the opportunity to enact legislation, including ultimately altering the Constitution, subject to the will of the voters. Opponents of partisan gerrymandering have the same opportunities, and can work to have their ideas implemented by the States.

It is all too common today for interested Americans to act like children and think this is the end of the world, or at least the republic. But the Supreme Court today demonstrated that the system of checks and balances devised by the framers is still working. It may be ugly but it has never been prettier. From a more distant vantage, it is beautiful.

If we had any sense of history we would know that.