Back in law school, I published a long article in the Marquette Law Review (1998), showing that FDR’s threat of court-packing DID alter the direction of an out-of-touch and political court’s rulings during the New Deal.
(At the time, some scholars were trying to argue otherwise. They still do, I believe).
I was a pretty non-political student back then, but the stubborn legal historian in me felt the need to rebut anachronistic arguments that some pristine and apolitical evolution in legal doctrine explained the dramatic turn in the once conservative court that came after FDR upped the pressure.
And I spent hundreds of pages and even more footnotes showing that precedents that had stood for one thing one year, suddenly stood for other things not long after. That what looked like consistency because similar precedents were being cited over time masked the fact that the underlying interpretation of those cases had changed. So I argued that THAT was why the “switch in time that saved nine” could look like a legal evolution on the surface even when it was anything but. They covered their tracks that way.
I never delved into the deeper reasons for it, but it struck me as odd that some in the law were working so hard to “protect” the law and courts as if they were somehow unaffected by politics—especially when this was perhaps the most blatant example where politics drove so much of the court’s direction. The strained effort to depoliticize the court prior to the FDR plan, and then its dramatic turn after, appeared driven by the law profession’s need to hold itself up as above politics.
So diving through hundreds of cases at all levels, I diligently went about proving that removing politics from the Court’s historic about-face didn’t add up. (The paper actually won an award 🥇, and I was honored when Marquette deemed it worthy of publication).
Anyway, all this came back to me this week as Justice Roberts lectured America not to question the court’s integrity at the moment it continues a blatant hard-right turn, overturning precedent after precedent and upending rights and protections that have been in place for several generations, all while enmeshed in scandal over individual Justices’ behavior.
Of course, on the surface, all the decisions are based on theories, doctrines and arguments wrapped in legalese that makes the head spin. But below the surface, we all see the stories about Leonard Leo and the Federalist Society and fancy trips and the very groups these billionaires and networks they support backing some of the very cases they keep winning at the Court—justified by all that opaque legalese. And now it looks like one of these cases was based on phony facts and two on cooked-up plaintiffs, violating bedrock norms about what cases courts should take up in the first place (things I would’ve been learning while writing that article).
I’m also reminded of my old article as I watch the Supreme Court in Ohio uphold an August special election that violates a law the Ohio legislature recently passed banning Aug special elections(!)
Of course, that flawed and lawless decision—one my 6-year old could poke holes through—was also dressed up in fancy legal rhetoric and logic games as well. But these Ohio justices were all boosted by millions from the Ohio Chamber that also backs this bogus August election. And the swing Justice is the son of the Governor, who of course supports that illegal special election as well.
Same pattern: fancy legal language and argumentation, highly political reality.
Let me be clear: I want courts to be above the politics of the day. As a lawyer, I believe that is how our system should conduct itself. That is when it is strongest. That’s why I remain appalled, as a lawyer, that the Ohio statehouse recently added party ID to ballot for Justice races in Ohio. A true setback for the courts in Ohio.
But once courts ARE highly politicized, the urge to cling to the notion that they are NOT is not only wrong-headed, but rises to dangerous, willful blindness about what’s happening
Disinformation, really.
THEY may want to cling to the “majesty” of the law; to, as we labeled it in 1998, “legalism,” as if everything is flowing from an internal and pristine legal and intellectual conversation.
That’s key to their legitimacy.
But if they are claiming that mantle while imposing a hardened political ideology and running over bedrock legal and ethical norms, accepting that frame allows a dangerous and false narrative to set in.
And it also blinds us to the reality that the best solutions to a court that has veered dangerously into politics will likely require politics itself, driving real reforms.
That’s not “politicizing” the (already politicized) court, as Biden said the other day…
It’s fixing it—and bringing much needed balance and credibility back to such a critical and now-damaged institution.
And my guess is that’s why FDR ultimately dared to push back on an out-of-control court as hard as he did.
Simply and compellingly stated. The cavalry isn’t coming. We must be the cavalry.
So your next article will be .... “When push comes to shove?”