Below, Jonathan raises the following from a Jeff Rosen blog post:
The conservative justices may have calculated that they could strike down campaign finance restrictions without provoking a full-blown presidential backlash. But it takes only a few high-profile presidential attacks to tar a Court as activist in the eyes of history. During the 1930s, the Supreme Court upheld a great deal of FDR’s economic recovery program, but the New Deal Court is remembered today as a group of unprincipled activists because of just a handful of high profile decisions that FDR prominently attacked.
I assumed that when Rosen refers to the “New Deal Court,” he means the pre-1937 Court that resisted elements of the New Deal.
That said, it’s a bit odd to write that “the New Deal Court is remembered today as a group of unprincipled activists because of just a handful of high profile decisions that FDR prominently attacked.”
I’ve never heard the New Deal Court attacked as “unprincipled activists.” Reactionaries, yes. Defenders of a pre-modern “horse and buggy Constitution” (FDR’s words), yes. Out of touch, yes. Anti-democratic, yes. “Activists,” yes. But unprincipled? No! The complaint has always been that they had the wrong principles, not that they were unprincipled. It was quite clear to everyone that given existing constitutional precedent and understanding circa 1933, much of the New Deal was unconstitutional. That’s why, for example, the Court invalidated the National Industrial Recovery Act by a unanimous vote. And the Court invalidated the Agricultural Adjustment Act by a 6-3 vote, including “moderates” Hughes and Roberts.
That brings us to the “handful of high profile decisions.” The NIRA was the heart of FDR’s economic recovery program, and the AAA was the heart of his agricultural recovery program. The Court also invalidated a series of less significant, but still important, New Deal legislation. Rosen makes it seem FDR picked a fight over a “handful” of relatively inconsequential decisions. But there has probably been no greater example of the Supreme Court’s devotion to principled constitutional interpretation, and its willingness to challenge the political branches, than the Court’s willingness to invalidate the key elements of a very popular president’s economic program in the middle of the worst economic crisis in American history.
Finally, I vigorously disagree with the lesson Rosen draws from all this, which is that Obama is wise to take on the Court:
It’s a relief to see former Professor Obama having the nerve to stand up for judicial restraint and to criticize the conservative justices to their faces. If the justices don’t take the criticism to heart, they’re headed toward a full-blown confrontation with the White House and Congress that won’t end well for the Court.
FDR ultimately did engage in a full-blown confrontation with the Supreme Court, via his Court-packing plan, presaged by his vigorous attack on the Court in his 1937 SOTU address, and coming after he won a smashing victory in the 1936 elections. Yet despite FDR’s popularity and the Court’s lack thereof, despite the fact that he ultimately tried to mask his confrontation with the Court in concerns about the Justices’ age, despite huge Democratic majorities in the House and Senate, despite the Court’s invalidation of extremely important legislation, and despite the continuation of the Depression, the Supreme Court ultimately won the confrontation, and won it handily. FDR was widely accused of wanting to assume dictatorial powers, his popularity never quite fully recovered, and the Court-packing scheme got his second-term off to a rocky start, ultimately contributing to massive Democratic losses in the 1938 elections.
For that matter, Dred Scott didn’t much damage the Court in the long-run; nor did Lochner and associated cases, the New Deal confrontation with Roosevelt, Truman’s battle with the Court over his seizure of the steel industry, Brown, the Court’s 1957 opinions favoring Communist litigants, the redistricting cases of the 1960s, Roe v. Wade, Bush v. Gore, or any other cases or series of cases for which the Court has been harshly attacked by politicians and their supporters.
The general lesson is that the Court is not an easy political target, beyond standard “rally your base” considerations. The specific lesson of FDR and the Court is that even an extremely popular president at the height of his power lost when he tried to take on Court composed mainly of elderly gentlemen in their 70s whose constitutional ideology found little support even among the Republican opposition. FDR eventually won the war, but only by appointing new Justices. (This was virtually inevitable, considering that he was president for thirteen years; admittedly, Robert and Hughes in the interim became more, ahem, flexible (unprincipled?) in their interpretation of the Constitution, but I think they saw the writing on the wall, or perhaps Barry Cushman is right that later New Deal legislation was better-drafted to take constitutional objections into account.) That’s the only way a much less popular president, facing a much more vigorous and popular Court, is going to win this particular war, too.
UPDATE: I should add that to the extent the pre-1937 New Deal Supreme Court has a “bad” reputation, this is almost entirely an artifact of the fact that the academics who study the Court–historians, political scientists, and law professors–have been overwhelmingly sympathetic to the New Deal and hostile to its opponents, and have eagerly engaged in winners’ history for the last seven+ decades. Why “winner’s history?” Consider the widely accepted and repeated notion that the pre-New Deal Supreme Court invalidated “Progressive” economic regulation because the Justices were Social Darwinists. There is no (and I mean zero) evidence that any of the “conservative” Justices of the early twentieth century were motivated to any meaningful extent by Social Darwinism, but that didn’t stop historians from consistently asserting it as gospel because it fit into a narrative they favored.