“Instead Of Listening To Those Who Misunderstand The History Of “Court-packing,” Democrats Should

“Instead of listening to those who misunderstand the history of “Court-packing,” Democrats should adopt the framing used by Senator Robert LaFollette, Jr. to back FDR’s plan. A Progressive Republican from Wisconsin, LaFollette argued passionately that the president wasn’t trying to “pack” the Court; rather, he said, FDR was trying to “unpack” the pro-business bloc that had taken it over in the preceding decades. [Quote] There is a lot of talk of the President “packing” the Court. Let’s not be misled by a red herring. The Court has been “packed” for years – “packed” in the interests of Economic Royalists, “packed” for the benefit of the Liberty Leaguers, “packed” in the cause of reaction and laissezfaire. Let’s be frank about this matter. The vested interests have for years prevailed in the selection of judges. Under our form of government the will of the majority should prevail. If the majority of the people want progress, they shall have it. [The 1936 election] made it clear and unmistakable where the vast majority of the people stand. They want to be free from the shackles of vested interests. They have rejected the Economic Royalists. In the words of Lincoln, they want a government of the people, by the people, and for the people. They cannot have it if the Supreme Court places itself above the Constitution and arrogates to itself legislative functions. One clear way in which they can have their will of last November expressed is to have the Congress “unpack” a Court which has long been “packed” by the forces of reaction. [End Quote] Of course, this argument fell short at the time, because its basic cynicism ran headlong into the stubborn idealism that all too many Americans still had about the institutions of government. But thanks to the ethical scandals and political gamesmanship that have come to define the current Supreme Court, the argument that the Court has been “‘packed’ by the forces of reaction” seems quite obvious. As a result, the argument that it now needs to be “unpacked” would carry much more weight.”

— Unpacking the Court