She discussed five top books on US Supreme Court justices with Eve Gerber at The Browser, including:
Supreme PowerRead about the other books Lithwick tagged at The Browser.
by Jeff Shesol
Let’s turn to books about the people beneath the black robes, beginning with Jeff Shesol’s history of Franklin Roosevelt’s 1937 Judicial Procedures Reform Bill.It provides plenty of personal background about the justices who sat on the Supreme Court when President Roosevelt tried to change the size of it, in what came to be known as the court-packing plan.
One of the reasons why I chose this book is that it evokes the same questions as with what is happening right now in American politics. It reminds you that everything you think is happening for the first time has happened before.
FDR, who was a very popular president, was elected presumably to get the country out of a horrendous recession. And he was faced, as Obama is, with a very conservative court. That court started striking down his New Deal [economic] programmes one after another. Although the bills were popular, the court said this is too much power to the executive branch [of the US government] or this is too much power to regulate interstate commerce. Stop me when this sounds familiar. It is exactly what’s happening right now.
So FDR proposed this sham plan that would allow him to appoint a justice to the Supreme Court to supplement every sitting justice who was over the age of 70. So the Court could go from nine to as many as 15 members. The pretext was that because the justices were old he wanted to lighten their workload. But it was clear that was not what was going on. He just wanted to pack the court with justices favorable to the New Deal, and he lost. He was faced with an astounding backlash, not just from Republicans but from the entire country. To me, it’s a really interesting book about the relationship between the president, Congress and the courts – which telegraphs so much about what we are seeing right now.
What do we learn about Supreme Court justices from reading this history?
One of the interesting things, which Shesol talks about a lot, is that Roosevelt lost the battle but won the war. Because the ultimate outcome of the court-packing plan was that several justices began to switch and vote with the liberal bloc to uphold New Deal legislation. This was known as the “switch in time that saved nine”. It was widely credited with saving the court and the Constitution.
This shows that the court is really responsive to public opinion and external threats. We have the notion that the court is completely cordoned-off from real life, and the justices are oracular beings who don’t care about what’s going on around them. But in this account of the court-packing episode, we can clearly see that the justices made the decision to preserve the institution by shifting when faced with external threats.
This was seen as the greatest misstep of FDR’s entire career. What fascinates me is that the country rallied around the idea that a nine-member court was inviolate – even though that number doesn’t appear anywhere in the Constitution. The number of justices had changed widely in earlier court history, up until 1869 when the number nine became fixed. The American people developed the quasi-religious notion that you don’t mess with the court. Even this incredibly popular president couldn’t get them to change their need to believe that what the court does transcends politics.