Are their views of reforming the judiciary really that different? I’m reading Jeff Shesol’s great book, Supreme Power, which tells the story of FDR’s battles with the Supreme Court during the New Deal. Court packing was just the tip of the ice berg. He considered proposals that Congress could request advisory opinions, if Congress passes a law that was already struck down, the Court can’t do anything about it, eliminating the court’s jurisdiction to review statutes as unconstitutional, etc. I mean we grimace when Newt wants to subpoena judges with whom he disagrees, but are his means that much different than FDR?
One thing I didn’t realize is that leading up to the election of 1936, FDR was totally quiet about his plans for the Court. He didn’t even tell members of Congress. After his landslide victory, he launched the court-packing plan by surprise. Everyone was shocked! People were distrustful, and opposed the change. Some felt they were misled, a bait-and-switch. So can it really be said FDR’s proposal’s had the public’s mandate and support? Did the election of 1936 really justifying his draconian action? Bruce Ackerman would have us say yes–and there is a constitutional moment. This evidence suggests to the contrary.
Other miscellaneous facts. Both the Nazi party and Fascist Italy praised FDR’s court-packing plan, as exemplifying ideal fascist approaches to centralizing power. Also, the Schecther brothers voted for FDR in 1936.