Republican unifiers warn that if Democrats capture the presidency, and, even more ominously, the Senate, the legislative and political mischief they will propagate may pale in comparison to the more lasting damage progressives could inflict on the judiciary. If elected, Hillary Clinton undoubtedly would appoint young progressive justices to the court in an effort to control the legal agenda long after she leaves office, but conservative voters should seriously consider voting for her anyway.
The dangers a Trump presidency would pose for foreign policy (isolationism) and economic prosperity (trade wars) outweigh the constitutional distortions that would continue with a Democratic administration. Moreover, there are no guarantees that Trump would appoint a principled conservative to the court even if he were elected president. Conservatives should resign themselves to losing the court, taking solace in the fact that the court can be recaptured far more quickly than conventional wisdom allows when genuine Republicans regain power. Of course, it will require thinking outside the box—a willingness to take radical steps that conservatives by nature are averse to consider. Specifically, Conservatives can regain control of the court through court-packing, or increasing the number of justices on the Supreme Court until conservative justices outnumber liberal justices.
This radical but perfectly constitutional remedy was first proposed by Franklin Roosevelt to reshape the court in the 1930s, and conservatives should use it after a hoped-for sweeping Republican victory in 2020 as an indispensable step in advancing a conservative agenda. It would be easier for conservatives to recover from a Clinton presidency than it would be from a Trump presidency, even taking the court into consideration.
Court-packing has a bad name. Many historians believe Roosevelt profoundly miscalculated when he proposed the Judicial Procedures Reform Bill of 1937 after his landslide 1936 reelection. Fearing that key components of the New Deal—like the Wagner Act or Social Security Act—would be struck down by conservative justices who had already declared legislation (like the National Industrial Recovery Act) unconstitutional, Roosevelt proposed a complicated scheme to increase the number of justices on the Supreme Court. The scheme was blatantly dishonest. Purportedly, the measure was designed to lighten the workload of elderly justices who wouldn’t retire after the age of 70. Concern with workload was a transparent subterfuge that was discredited when Chief Justice Charles Evans Hughes wrote an open letter to Roosevelt, reassuring him that the Court was efficiently handling its docket. Plainly, the intent of the bill was to allow Roosevelt to appoint new progressive judges who would outvote the aging conservatives and uphold the New Deal.
Roosevelt’s disingenuous characterization of the Judicial Procedures Reform Bill is one of the factors that led to its defeat. Opponents rallied, including many Democrats (Roosevelt’s own vice president, John Nance Gardner, was an opponent). At the same time that judicial reform was under consideration, Roosevelt had proposed a sweeping administrative reform act that would have centralized administrative power in the hands of the president. With a sideward glance at ominous events unfolding in Germany and other European nations, Roosevelt’s opponents began referring to him as a dictator. Finally, Senate Majority Leader Joseph Robinson’s unexpected death disrupted coalition building for the measure, and a timely retreat by the court upholding some parts of the New Deal further uncut the case for court-packing.
The fate of the Judicial Procedures Reform Bill obscures the broader lesson to be learned from this episode. The bill died, but Roosevelt won. The court began to uphold New Deal measures (Justice Owen Roberts famously provided “the switch in time that saved nine” when he voted to uphold minimum wage legislation for the state of Washington in West Coast Hotel v. Parrish). Willis Van Devanter, associate justice on the Supreme Court and one of the “four horsemen” opponents of the New Deal, resigned. Other justices followed. By 1941, all of the conservatives who opposed the New Deal were gone and the new court provided rubber-stamp approval of its economic measures.
Roosevelt successfully packed the court, albeit not in the way he had originally intended. His proposal to increase the size of the court failed for political reasons. Nevertheless, his original proposal would have been constitutional since the size of the Supreme Court is not specified in the Constitution and the number of judges on the court has varied over the course of American history.
Conservatives reluctant to support Trump but lamenting that a Clinton victory would lead to a Supreme Court dominated by progressives should recall the lessons of the New Deal. The progressive court that would emerge from a Clinton presidency could be quickly transformed if Republicans copy New Deal progressives and embrace court-packing. There would be costs associated with this scenario, but the costs of either a Trump presidency or acquiescing to a generation of progressive jurisprudence would be far greater.
Donald Brand is a professor of political science at the College of the Holy Cross.