I’ve had a conscious skepticism of Jeffrey Rosen’s facts and opinions ever since his shockingly poorly-researched Sonia Sotomayor hitjob last summer that was roundly criticized and described as “a model of shoddy, irresponsible, and (ironically enough) intellectually shallow ‘journalism.'”
His most recent article in The New Republic does nothing to change my mind. He discusses an apparent “battle” between Obama and the Supreme Court of the United States (SCOTUS) after his public criticism of their Citizens United decision during the State of the Union–the remark Justice Alito grimaced at. In his article POTUS v. SCOTUS, Rosen writes:
That is, Roberts seems to have joined the battle with Obama because he thinks the Court can win it.
As a matter of history, this argument is wrong: In battles between a popular president and an anti-majoritarian Court, it’s almost always the president who prevails. Using the Court as a punching bag puts Obama in the company of his greatest predecessors, Jefferson, Lincoln, and both Roosevelts–all of whom bashed the Court for thwarting the will of the people. As long as he plays his cards carefully, Obama has much to gain from challenging John Roberts, and the Roberts Court has much to lose.
“It’s almost always the president who prevails.” Really? Let’s see if this is true, taking Rosen’s own examples. I won’t even get into Jackson after Worcester v. Georgia, or Truman during Youngstown v. Sawyer…
Jefferson v. Chase/Marshall
In 1804, Thomas Jefferson was re-elected to the presidency by a huge landslide, capturing 162 out of 176 electoral votes. His party, the Democratic Republicans, controlled Congress with 73 of 105 House members and 25 of of 34 Senators. One month after Marbury v. Madison was announced–the case that famously established the Supreme Court’s supreme power of judicial review, allowing the Court to declare unconstitutional and invalidate Congressional legislation–Jefferson had his party impeach a[n admittedly alcoholic and senile] Federalist circuit court judge named Pickering. One month after Pickering’s successful conviction, and just over one year after Marbury was decided, Jefferson turned to target Supreme Court Justice Samuel Chase; the motion to send the articles of impeachment to the Senate garnered every Republican vote in the House, and would require only two-thirds of the Senate to convict–23 votes. Many thought impeachment and conviction were certain, and that Chief Justice John Marshall would be next, a man Republicans reviled as the “subtly calculating enemy of the people”; Marshall himself loathed Jefferson as well, and had written that Jefferson’s election would “sap the fundamental principles of the government.”
Marshall was so spooked by the Chase impeachment that he anxiously suggested in a letter to Chase that Congress should be allowed to reverse Supreme Court decisions it considered “unsound.” And he fell over himself to accommodate Chase’s accusers when called to testify at the impeachment. Marshall had diffused the crisis, and Chase was acquitted. There was, however, no doubt that Jefferson had accomplished his mission: Marshall acknowledged that he never fought battles that he knew he couldn’t win.
So according to Rosen, Marshall accommodated Chase’s accusers… and Chase was acquitted? And Jefferson won, because of that? Something about this narrative doesn’t make sense.
It’s true that Marshall was spooked. He wrote in a letter to Chase, as Rosen referenced, “I think the modern doctrine of impeachment should yield to an appellate jurisdiction in the legislature. A reversal of those legal opinions deemed unsound by the legislature would certainly better comport with the mildness of our character than the removal of the Judge who has rendered them unknowing of his fault.” Yet despite Marshall’s fears, we still have judicial review today, and Congress does not have appellate jurisdiction, precisely because Jefferson did not accomplish his mission. With foreign ambassadors from European monarchies in the galleries, curious to see how our new nation, an experiment in democracy, would respond to the beginnings of judicial independence, Chase’s lawyers gave impassioned speeches appealing to the Senators’ pity for an “aged patriot” who was being “hunted from place to place, to find indiscretions, which may be exaggerated into crimes.” They also appealed to the principles of the Senators who were aware that their own body–elected by state legislatures and representing state units, not population size–was designed to protect the minority from a tyranny of the majority. Even Aaron Burr, the scoundrel from New York, recognized the gravity of the moment, and as his last political act presided over the trial of Salmon Chase with such impartiality that Federalist said “I could almost forgive Burr for any less crime than the blood of Hamilton.”
The first Republican vote on the first article of impeachment, from Senator Stephen Bradley of Vermont, set the tone for the rest of the trial: “nay.” Ten other Republicans joined him against conviction, Samuel Chase was found not guilty on the rest of the articles, and the judiciary was saved. Perhaps some, and maybe Rosen, might argue that this trial alone was sufficient to accomplish Jefferson’s intention of silencing the partisan speeches from SCOTUS Justices, but I would say, considering the primary consensus-thought goal of reversing judicial review, that Jefferson failed in his confrontation. And John Marshall would be free to continue to guide his court’s Federalist decisions that cemented the Court as the ultimate oracle of the Constitution and expanded federal power in landmark cases such as Cohens v. Virginia, Gibbons v. Ogden, McCulloch, Dartmouth College, Martin v. Hunter’s Lessee, etc.
SCOTUS 1. POTUS 0.
Lincoln and Teddy Roosevelt v. SCOTUS
As a loyal classical Republican, I can’t criticize Lincoln, especially when he was against the worst court in U.S. history–the Taney Court. Rosen acknowledges that while Lincoln catapulted to the presidency by rightly denouncing the Dred Scott decision, he refused to bow to extreme members of his party and pack the court or abolish the Taney court entirely. While it’s true that he shoved a suspension of habeas corpus down the throats of the Court and the nation, it’s hard to say that was Lincoln’s proudest moment. He was a great president, the best president, but his suspension of the writ of habeas corpus will never be hailed as one of his great achievements, merely something to be tolerated in a time of national peril. I should note that constitutionally, the writ of habeas corpus may be suspended in times of rebellion, which the Civil War probably qualified as, and I think the real question was in regards to the procedure, and whether the executive could do it unilaterally. Lincoln was successful in getting what he wanted despite the objections of the Taney Court, but history doesn’t show a clear “moral victory” for Lincoln on this issue. I’ll call this even. +0.5 SCOTUS. +0.5 POTUS.
I know very little about Theodore Roosevelt’s problem with the Supreme Court, but I don’t need to. I imagine they have to deal with the Lochner era’s famously bad decisions striking down labor protections and working conditions protections. Instead, I’ll quote Jeffrey Rosen:
As president, Theodore Roosevelt called the Court “a menace to the welfare of the nation,” when it challenged his economic reform agenda. But, as a presidential candidate in 1912, he went beyond rhetorical fusillades and, in a progressive fury, proposed the popular recall of judicial decisions through referenda. He also argued for other state and federal laws that would allow voters to repudiate Supreme Court decisions that challenged the people’s ability to be “the ultimate makers of their own Constitution.” Only Colorado adopted proposals along these lines. And, of course, Roosevelt’s Bull Moose candidacy went down in defeat.
Still, history judges the Lochner court to be in the wrong. +0.5 SCOTUS. +0.5 POTUS.
SCOTUS 2. POTUS 1.
Franklin Roosevelt v. SCOTUS
The last example is FDR’s famous campaign to pack the Supreme Court after it invalidated several of his New Deal schemes, including the National Industrial Recovery Act, the Recovery Act, and the Agricultural Adjustment Act, on the basis of their according too much legislative power to the majority. 9th Circuit Judge Richard Posner takes a somewhat sympathetic view to Roosevelt’s frustration. In his The New Republic article on Roosevelt’s court-packing scheme, he writes: “Given the potential for political instability and social unrest if the entire New Deal program was killed, Roosevelt was right to strike at the Court, especially as he had a more sensible conception of the Constitution than that of the conservative justices then…” The Court stood in opposition was composed of “three factions: a liberal faction of Brandeis, Cardozo, and Stone; an extreme conservative faction of Butler, McReynolds, Sutherland, and Van Devanter; and a moderately conservative faction of Hughes (the chief justice) and Roberts.” Roosevelt’s plan would have raised the maximum size of the court to 15 justices, and would have shifted the court from the 6-3 conservative majority to a 9-6 liberal majority in the worst case scenario, and up to a 14-1 liberal supermajority if all of the septuagenarians retired.
Both Rosen and Posner attribute the court packing plan’s defeat to the Court’s capitulation to New Deal legislation. Posner writes, “What finally killed the plan was an unbroken string of surprising victories for the New Deal in the Supreme Court–twelve in all, with no defeats–while the Court-packing plan was being debated, coupled with the sudden retirement of Justice Van Devanter, one of the four extreme conservatives (who accelerated his retirement in order to help defeat the plan), and topped off by the sudden death of Senate Majority Leader Joseph Robinson.” This is echoed by Rosen: “But, although his Court-packing plan failed in the Senate, it may have cowed the Court into upholding the New Deal. Legal historians, such as Barry Friedman of New York University, persuasively contend that, if the swing justice on the Hughes Court, Owen Roberts, hadn’t changed his mind about the New Deal, Roosevelt would have prevailed in mobilizing public support for disciplining the justices.”
The Court may have been, as John Marshall was, scared into falling in line (or maybe they did it purposely to cleverly scuttle Roosevelt’s plan), but Roosevelt’s court-packing scheme was doomed from the start. Roosevelt did not consult Congress when he summoned his party’s leaders to the White House and presented his plan, and it was the straw that broke the camel’s back–Congress’ frustration at this arrogant and authoritarian president’s excesses finally boiled over. Vice President Garner expressed his sentiments on the bill to his former colleagues in Congress by holding his nose with one hand, while making a Roman thumbs-down gesture with the other: kill the bill. Hatton Sumners, chairman of the House Judiciary Committee, remarked to his fellow Congressmen on the way back to the Capitol, “Boys, here’s where I cash in my chips.” He then “refused to endorse the bill, actively chopping it up within his committee in order to block the bill’s chief effect of Supreme Court expansion.” Sumner’s refusal to let the measure pass through his committee ensured that the House could not hear it first, and that it would have to first be considered by the Senate, preventing Roosevelt from enticing Representatives, who had to be reelected every two years, with his coattails, or coercing them with his bully pulpit.
Despite Roosevelt’s speeches and fireside chat campaign denouncing the judiciary as undemocratic, the Senate effectively slowed and chilled, as it was designed to do. The chairman of the Senate Judiciary Committee, Senator Ashburn of Arizona, promised to allow unlimited debate and ensured that the hearings would last more than two months. The time also gave senators the opportunity to stump and tour the country. Robert Caro wrote, “Their speeches were reported in depth in newspapers, and heard on the radio; the airwaves were filled each night with the oratory of both sides in a remarkable public debate. And as America heard the arguments, America’s initial enthusiasm for the President’s proposal began to diminish.” Senators also began to change their minds. Joseph O’Mahoney, who depended on FDR’s allies for political patronage and whose state depended on New Deal pork, switched sides to join the senators opposing the bill.
It is also not clear that Roosevelt even had public opinion firmly on his side. Gregory Caldeira writes on polls taken during the period, concluding that:
“Over the entire period, support averaged about 39%. Opposition to Court packing ranged from a low of 41% on 24 March  to a high of 49% on 3 March. On average, about 46% of each sample indicated opposition to President Roosevelt’s proposed legislation. And it is clear that, after a surge from an early push by FDR, the public support for restructuring the Court rapidly melted.”
Caldeira also shows that the Court was instrumental, through its decisions, in changing public opinion, and he suggests that the Court did so intentionally and on its own terms to defeat court-packing and save the judiciary, and not that it was forced or strategically manipulated into doing so by FDR. FDR certainly still pushed for court-packing after the Court started approving New Deal bills, and his end goal was an increase in executive power, not just a few pieces of legislation (he didn’t, after all, give up on court-packing after the court started approving his legislation). I should also note that public opinion is somewhat irrelevant to the passing of the bill since the ultimate decision rested with Congressional opposition, specifically in the Senate, but still relevant to FDR’s final “moral victory” tally.
With the death of Senate Majority Leader Robinson (to whom had been promised the first opening on the Court), court-packing was finished. The Senate voted 70–20 to send the judicial-reform measure back to committee, where the controversial language was stripped, and when they realized that the Court would be safe, the Senate floor resounded with cheers. Though some scholars, including the late Chief Justice William Rehnquist, noted that Roosevelt lost the battle but won the war, both because his New Deal legislation eventually passed, and because he ended up appointing eight justices thanks to his long tenure as President, I don’t think his choice to battle the Court was necessarily a wise one (and certainly didn’t cause him to win control of the court through his normal appointments). For one, it sapped his popular opinion. For another, it had unified Republicans in Congress with Democrats uneasy with Roosevelt’s sweeping powers and demands. The court-packing loss represented a change in Roosevelt’s presidency and ended the custom of rubber-stamping every one of Roosevelt’s New Deal bills. This new, powerful conservative Republican-Democrat coalition rejected a package of Roosevelt’s “must” bills in November 1937 and “During the remaining seven years of Roosevelt’s Administration,” writes Caro, “Congress blocked every major new domestic law he proposed.” In 1938’s elections, Roosevelt attempted to oust three conservative Senate Democrats (George of Georgia, Tydings of Maryland, and Smith of S.C.), members of his own party, even traveling to their home states to campaign against them, and still failed on all three counts.
Roosevelt’s efforts to pack the court backfired and cost him politically. The fact that the Court liberalized afterward could be attributed to the natural retirements, and the liberalization during the court-packing debates may even have been designed by Justices to thwart Roosevelt’s campaign to forever change the courts. He lost by creating a political coalition he could not overcome. And he lost in the eyes of history: few citizens today would look favorably upon his efforts to pack the Court, and no one remembers what grave offenses the Court committed (striking down bad economic legislation that slowed recovery?) to justify Roosevelt’s abuses on the third branch of government. His enduring legacy is positive, like Lincoln’s and Jefferson’s, in spite of his assault on the Court, not because of it. And now, just as Jefferson’s failure to impeach Chase set high the bar for impeaching federal judges, Roosevelt’s failure to pack the courts will ensure no future president will have an easy time doing it either. +1 SCOTUS. +0.5 POTUS (to be generous, since the we now accept Roosevelt’s interpretation of the commerce clause).
SCOTUS 3. POTUS 1.5.
SCOTUS wins. I’m not saying that Citizens United was a great decision, and I’ve written critically of the policy implications. And I’m also not saying that Barack Obama can’t disagree with the decision, and try to circumvent it through clever statutory regulation. But Rosen’s central thesis that Obama will certainly win in a battle against the Court (whatever that battle would be, if it in fact exists) because history said so is completely untrue, disproven by his own examples. History does not fondly remember presidential policies bullying the Court because the Court represents, for all of its mortal flaws, the U.S. Constitution. Do us a favor, Obama. If you want to mitigate the potential negative impacts of Citizens United, pass a new law without pissing on the Court, and your legacy.
(Hat Tip: Much of the history I got from Robert Caro’s excellent biography of LBJ, Master of the Senate. I also cited liberally from Wikipedia articles, which I linked to. Also, thank you to all of you who are still reading this.)