Category Archives: Article III

Essays on Article III of the Constitution

How FDR lost his brief war on the Supreme Court – National Constitution Center

On February 5, 1937, President Franklin D. Roosevelt shocked America by introducing a plan to expand the Supreme Court, to gain favorable votes. FDR’s war on the court was short-lived, and it was defeated by a crafty chief justice and Roosevelt’s own party members.

Source: How FDR lost his brief war on the Supreme Court – National Constitution Center

President Roosevelt had enacted wide-ranging legislation along with congressional Democrats as part of his New Deal program, starting in 1933.

By 1937, Roosevelt had won a second term in office, but the makeup of a conservative-leaning Supreme Court hadn’t changed since he took office four years earlier. There were four Justices who were conservative enough that their votes against most New Deal plans were expected. A fifth justice with conservative leanings was the Chief Justice, Charles Evans Hughes, who also narrowly lost the 1916 presidential race to the Democratic incumbent, President Woodrow Wilson.

However, Hughes also had roots in the progressive wing of the Republican party. Another justice, Owen Roberts, was a Hoover appointee who also voted with the conservatives on some decisions.

Adding to the tension between the president and the Supreme Court were a series of decisions by the Justices that halted key components of the New Deal. After his re-election, Roosevelt developed his plan in secrecy, working with his attorney general, Homer Cummings, on a way to ensure the court would rule favorably about upcoming cases on Social Security and the National Labor Relations Act.

By passing a law that would allow the President to appoint an additional Justice for every sitting justice who was over 70 years of age, Roosevelt could add six of his own Justices to the court. With two liberals already on the bench, that would put the odds in FDR’s favor.

While the idea may seem outlandish today, President Roosevelt must have felt the Judicial Procedures Reform Bill of 1937 stood a good chance of success. The President used one of his fireside chats in March 1937 to make his case to the American people.

“This plan of mine is not attacking of the court; it seeks to restore the court to its rightful and historic place in our system of constitutional government and to have it resume its high task of building anew on the Constitution ‘a system of living law.’ The court itself can best undo what the court has done,” Roosevelt said.

However, many Americans believed the high court was sacrosanct, and opposition to the plan steadily built inside Washington. It wasn’t assured that the proposed law would even make it out of committee for a vote on the Senate floor.

On March 10, Cummings testified before the Senate Judiciary Committee. “We want an independent judiciary, but we want a judiciary that will permit the country to move,” Cumming said. A week later, more testimony before the committee stuck a fork in the bill.

Senator Burton Wheeler read a letter from Chief Justice Hughes to the committee, which explained the need for an independent Supreme Court and debunked much of the logic behind the bill and Cummings’ testimony. An additional signer on the Hughes letter was the liberal justice, Louis Brandeis.

In the diaries of Harold Ickes, a key FDR adviser, the letter’s effect was duly noted. “This letter, without expressing itself as to the policy of the president’s plan, sought to prove in great detail that the court did not need any extra help to handle its work since it kept right up with its docket. It then went on to Congress the opinion that more judges would make for inefficiency and delay. It was good tactics,” Ickes said.

So within five weeks of the President’s announcement, the court-packing plan, as it came to be known, was heading toward a dead end in the Senate. By June 1937, the Judiciary Committee had sent a report with a negative recommendation to the full Senate. “The bill is an invasion of judicial power such as has never before been attempted in this country. … It is essential to the continuance of our constitutional democracy that the judiciary be completely independent of both the executive and legislative branches of the government,” the report read.

Its conclusion was even more direct: “It is a measure which should be so emphatically rejected that its parallel will never again be presented to the free representatives of the free people of America.”

In the meantime, changes were afoot that made sure the whole idea of a court-packing plan wasn’t coming back in the Roosevelt administration. The Roosevelt administration was on the winning side of three court decisions involving the minimum wage, Social Security, and the National Labor Relations Act, when Justice Owen Roberts began voting with the more liberal justices.

A key conservative justice, Willis Van Devanter, also decided to retire. And by July 1937, the Senate tabled the court-packing debate for good. Its chief lobbyist in the Senate, Majority Leader Joe Robinson, died of a heart attack. Robinson had fought hard to ensure passage of the court-packing bill, and without his support, the measure was effectively finished.

In the end, President Roosevelt outlasted seven of the nine Justices who sat on the bench in 1937.

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10 fascinating facts about the Supreme Court on its birthday – National Constitution Center

It was back on this day in 1789 that Congress passed the act that officially created the federal judiciary system that included the Supreme Court and other federal courts.

Source: 10 fascinating facts about the Supreme Court on its birthday – National Constitution Center

Articles of Faith



It is almost an Article of faith among Conservative Right political folk – the Courts are stacked with liberal activist Judges who will always overturn the will of the Voters. Don’t believe me? Well… this week the Godfather of conservative Talk Radio said pretty much exactly that.

The problem is, of course, that Articles of Faith are usually – okay, always – based in confirmation bias. That is to say that they are based only upon things that tend to support the statement. events or things that tend to disprove the Article of Faith are generally ignored or dismissed.

When it comes to the Constitution, this is especially true. Conservatives believe that Activist Judges are upending the whole thing, while Progressives believe that the Judges aren’t activist enough. Which more or less means that the truth is somewhere in the middle.

Since I am on the political Right, I prefer to look at things that challenge my own position and thinking. When it comes to the perception of Judges destroying America, there’s no place better to start than the 9th Circuit Court in San Francisco.

So let’s go there and take up the case of a Roseville Police Officer who managed to get herself terminated, for having sex, with a fellow Officer…


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