The judiciary, Alexander Hamilton warned, “is in continual jeopardy of being overpowered, awed, or influenced by” the political branches of government. Never more so than in 1937. That year, President Franklin Roosevelt waged political war against a Supreme Court that had stifled his ambitious New Deal policies. He urged Congress to add six new justices to the nine-member court, creating a body that would overturn its recent decisions and align the court with his political agenda. FDR was at the height of his prewar authority, and the court’s counter-majoritarian decisions had put the institution in genuine peril. But in the end FDR was thwarted by his fellow Democrats, who recognized the scheme’s anti-constitutional stakes.
For nearly a century since this episode, “court-packing” has been an infamy in American politics. Eventually, writes Laura Kalman, “1937” became “a parable for those who sought to make claims about the relationship between law and politics.” But Ms. Kalman, a historian of politics and the Supreme Court at the University of California, Santa Barbara, would draw different lessons from history.
