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Court Packing

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historically speaking

In the pantheon of great American presidents, a few are always at the top. Lincoln usually comes to mind, then Washington, and Jefferson. In the 20th century, the president who makes every list is Franklin Roosevelt. What makes FDR interesting is that, unlike Lincoln, FDR was beloved in his own time. Because of the way he handled the Depression, it was not uncommon to see FDR’s picture hanging in homes in a place of honor. Don’t get me wrong. Some people had issues with this president, but most appreciated his efforts to relieve the nation’s pains. Yet there was one episode where he did receive rebuke from both sides of the political aisle and the population at large and that was his effort to pack the Supreme Court.

Here was the situation. When FDR took over the nation in 1932, we were in the midst of the greatest depression in our history. The president wanted to tackle as many problems as he could in his first 100 days (starting a precedent that has lasted till today). Many of his proposals became part of his alphabet programs like the WPA, AAA, TVA, and the CCC. One of his first and, it turned out, most controversial was the National Recovery Administration. The NRA, in an effort to reduce competition, created codes that did things like set prices. The problem for FDR was that in 1935 the Supreme Court ruled the NRA unconstitutional.

FDR, worried that more of his New Deal plans would be rejected by the courts, came up with a plan to get the courts on his side. He proposed adding a new judge for every member of the Court over the age of 70, which meant adding six new justices to the bench, enough to turn the tide of the court in his favor. He claimed the court was overworked and suggested the new justices could relieve some pressure. The problem was that most Americans and both sides of Congress saw it for what it really was, a power grab. Even though the Democrats held the majority in both houses of Congress, a vote for FDR’s measure failed. The failure was partly because one judge had begun voting for FDR’s programs, but also because the courts were seen as sacred and people feared FDR’s plan could destroy the separation of powers.

Constitutionally, FDR had the power to propose this court-packing scheme. As with many things, the Constitution is silent on the number of judges to the high court, simply saying in Article 3, Section 1: “The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.”

Congress passed the Judiciary Act of 1789, which set up the Court with six judges. John Adams dropped it down to five, but then Jefferson brought it back to six and then later, when the Federalist judges did not die fast enough, he moved it to seven. Later Jackson added two more as the population grew and more judicial districts were needed. The Civil War saw some jumbling as Lincoln moved the number to ten, only to be reduced to seven by Andrew Johnson. Finally, under Grant the number was put to nine and since 1869 it has remained that way.

Now, in 2021 President Joe Biden is considering legislation to increase the number of justices for the first time since FDR. The president’s reasoning is that the Republicans have gained an unfair advantage with Trump’s three new justices. Democrats are still understandably upset at Trump’s nomination of Amy Coney Barrett after Republicans blocked Obama’s nominee, Merrick Garland, in his last year. However, though understandable, what the Republicans did was legal, if not morally, correct. What Biden is trying to do is no different than FDR, who wanted to make sure the courts agreed with him. If Clinton had won in 2016 and liberal-leaning judges controlled the court, there would be no call for equality in the court coming from Democratic camps.

I normally try to explain history, not solutions, but this is one area where I believe the Founders failed. Not that their system failed, but they could never have foreseen how partisan we have become.

Judges are supposed to follow the law, not a party. I would propose a new amendment to the Constitution that goes back to the original number, six, or maybe eight. With an even number, the new law would allow Republicans to choose four and the Democrats to choose four. If a judge dies, then the party of that judge gets to choose the new one. I know this sounds crazy, but with an even number justices will have to compromise over the law and not political leanings.

If Biden decided to, he might be able to pull off increasing the number of judges. Historically Speaking, however, he would need to be extremely careful. FDR won his second election by carrying all but two states before he tried something so daring. Biden does not have that same type of support. FDR, who was beloved, was seen as going for a power grab. Biden, who is nowhere nearly as loved, may not be able to survive the hit.


Dr. James Finck is a Professor of History at the University of Science and Arts of Oklahoma and Chair of the Oklahoma Civil War Symposium. To receive daily historical posts, follow Historically Speaking at Historicallyspeaking.blog or on Facebook.

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We’re persevering thanks to you!

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The COVID-19 pandemic has highlighted the courage, resourcefulness, and dedication of essential workers who toil day and night to ensure the safety and well-being of their fellow citizens.

Whether you’re a delivery person, nurse, mechanic, police officer, psychologist, grocery clerk, teacher, plumber, doctor, truck driver, social worker, pharmacist, electrician, or other essential worker, in your own way, you’ve helped members of your community make it through this difficult time.

To all of you, we say “thank you.” You’re the reason our community is making it through this crisis.

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Opinion

Have our elected officials forgotten who they work for?

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The Town and County still can’t get it together on issues, nor on Virginia’s Constitutional and Legislative laws.

Don’t you all feel that it should be a requirement that if you are going to run or seek a political seat that a course in American History and Civics should be part of the application, as well as reading the Charters of Town and County and passing a test on them?

Just because these “good ole’ boys” gatherings seem to neglect or ignore certain things on pertaining to how things are to be conducted or pursued because of political views getting in the way, shouldn’t allow them to comment in a public meeting about their opinions. – Like finding out facts and evidence before airing your comments on our law enforcement personnel. Don’t let emotions lead you to making a mountain out of a molehill.

Work together for the common good of this county and town. Stop the fussing and wanting things to go your way, look beyond your circle and see the whole range of voters you are working for!

Tenia Smith
Front Royal, Virginia

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Opinion

Executive Orders-Part III

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All Americans should be concerned about President Biden’s recent executive order on gun control. Try to forget for a moment, if you can, whether you agree with Biden or not and try instead to focus on the procedure. Biden is falling back on the two justifications that other presidents have used to skirt the Constitution, that Congress is not doing its job and that he is only following the will of the American people. However, is that statement true?  In some ways, yes. But, historically speaking, presidents were never supposed to represent the people’s will and sometimes non-action is action.

First, let’s look at the idea of representation.  Does the president represent the will of the people?  The answer is no.  That was never the Founders’ intention when creating the Constitution. Biden did win the presidency, but he only won the popular vote by 51.3%.  In other words, he really only represents about half of the ideas of Americans.  Even if the percentage was much higher, he represents the nation as a whole, not the people individually.  That is the job of Congress.  Congress is made up of both parties proportional to the political ideologies of the people.  Congress represents the will of the people.  Even if your representative is from a different party, congressmen represent all Americans virtually, so your ideas are represented – unlike the president who only represents his party.

This is exactly how the Founders envisioned it, but without the parties. The Constitution was written so that the president did not represent the will of the people.  If the Founders had wanted a popular vote to choose the president, they could have done so.  Instead electors are chosen to vote for the president. Although the people elect the electors today, that was not the case when the nation first started.  The point of the Electoral College is to actually separate the people from the president.  Congress is where there is a direct vote, at first only in the House, but today in both houses of Congress.  When a president makes an executive order, that goes against Congress. In fact, he is actually fighting the will of the people, not representing it.

Secondly, should the president act if Congress refuses to do so?  The answer is no.  The Constitution says, “All legislative Powers herein granted shall be vested in a Congress of the United States.”  No second clause stipulates, “or with the president in times of inaction or if things do not go the president’s way.”  This is American Government 101. Only Congress can make laws.

Thirdly, sometimes inaction is action. The president assumes that Congress is not doing its job if Congress does not pass the laws that he desires. All presidents who make this claim assume action is agreeing with them. In today’s particular case about gun control, however, Congress is not acting because it can’t.  Though most Democrats support gun reforms, not all Democrats do.  In other words, Congress is not making new gun restrictions because it does not have the votes in the Senate to pass any legislation.  The Democrats would need every vote, plus the vice-president to pass with a simple majority, let alone ten Republicans votes to pass the filibuster. The Democrats have neither.  There are some moderate Democratic senators who oppose the current gun control laws. In this case, the action is the Senate saying that it does not support current gun law proposals, which is different from the Senate doing nothing.

If the Congress, which represents the will of the people, decided against new laws and the president used an executive order to circumvent Congress to pass laws anyway, that makes the president a tyrant. The Founders were scared of a tyrannical president when they wrote our founding document, hence they put in checks and balances. Bypassing Congress goes against the very fabric of the Constitution.

Now that we have addressed procedure, let’s quickly address the content.  We need some common-sense gun laws. The mass shootings need to stop. However, the fact that one man and his pen can make such an important decision by himself, and against the wishes of Congress, is the reason we have the Second Amendment to begin with.  It was an armed citizenry that revolted against a tyrant in 1776. The Founders wanted Americans to have that right if needed again.


Dr. James Finck is an Associate Professor of History at the University of Science and Arts of Oklahoma in Chickasha. He is Chair of the Oklahoma Civil War Symposium. Follow Historically Speaking at www.Historicallyspeaking.blog.

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Opinion

The Last Shall Be First

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When I last wrote and referenced Black Lives Matter, I left out something crucial.

In the post-Vatican II Catholic Church there arose a concept termed “a preferential option for the poor.”  It means that God’s favor rests preferentially on the most injured people in any society. When I first heard the term, I asked what about me?  Doesn’t God love me?  I am not poor.

I have a brother and a sister and if one of them had a terminal illness I would pray for the one who is sick.  My preference would be the sick one.  Any parent would do the same. That does not mean that I do not love both of them equally.  It means the situation is not equal, not God’s love.

It is the same with Black Lives Matter.  White people hearing this phase rather naturally asked, “Don’t all lives matter? – Are you saying that my life does not matter?

All lives do matter, but history, especially recent history, tells us that some lives matter significantly more than others in many societies.  That is the essence of Black Lives Matter – the demand that white people recognize the profound cultural difference between the inherent value put on their lives, versus that of racial or other ethnic minorities.  Racism is a sickness, a disease and a crime, and its victims are black people and other minorities.  To continue to ignore racism’s consequences and its victims is to favor those who commit the crime of racism over the victims of that crime.

God’s favor rests with the victims of the crime of stripping the dignity from human beings, always has and always will.

Tom Howarth
Warren County, Virginia

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Opinion

Lexington and Concord Battle: When the American Revolution began – A day to be commemorated by the American Patriot

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Two hundred and forty-six years ago on 19 April 1775, the “shot heard round the world” was fired at the battle of Lexington and Concord. A handful of American farmers, shopkeepers, clergymen, men, and boys engaged the British Army, whose objective was to take and destroy patriot property, powder and weapons.

Depiction of the Battle of Lexington by William Barnes Wollen, 1910, Public domain, via Wikimedia Commons

Eight of our men, American Patriots, were killed right away defending their rights. Fed-up with the status quo they were determined that they would no longer be molested, abused, brutalized, restricted to their homes, weapons taken, not allowed to speak freely, not allowed to elect their own government leaders… have no representation to determine their taxes, barred from earning a living… nor would they continue to have a standing foreign Army rule their communities and live in their homes, taken by force! They resisted and confronted their oppressors.

There were more than 1,500 British soldiers that they faced that day. A handful of Americans faced the British at dawn. By the end of the battle, nearly 4,000 civilian patriots had joined the fight. Hearing the gunfire they ran toward it. Not away from it. The enemy retreated. Forty-nine Patriots were killed 39 wounded, and 73 British Redcoats killed, 174 wounded. Among our leaders was a young doctor, Dr. Joseph Warren, the man for whom this county, Warren County, Virginia, is named. He arrived at the Lexington Green after hearing gunfire bringing his medical bag to minister to the dying and wounded.

Here in Warren County, Dr. Warren’s picture and history now hang in every school and government building. (I am honored to have had a small part in having him remembered in our county.) Two months after the Battle of Lexington and Concord, on June 17, Joseph Warren, age 34, would die a martyr’s death fighting at Bunker Hill, so that you and I could live free under a Constitution… a free people… not ruled by a tyrant King! We live free because our forefathers shed their blood for US! Let us never forget them.

The Rev. Larry W. Johnson
A.k.a. Liberty Man-Teacher and Living Historian of the American Revolution History
Front Royal, Virginia

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Clarifying the historical record on voting rights and modern politics

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James Finck’s article has some valid and helpful insights, but he is wrong on his overall argument regarding Voting Rights.  In sum, we need to be reminded that we are not living in 1789 or 1963.  Society and technology have made some advances since then.

Mr. Finck observes that Democrats for many years in the “Solid South” kept blacks from voting.  Let’s be clear.  Senator Richard Russell told President Lyndon Johnson that when the Voting Rights Act of 1965, forwarded after “Bloody Sunday” in Selma, Alabama, was enacted, the Democrats would lose the South forever.  Russell was right. Even currently, 56 years later with the exceptions of Virginia and Georgia, all the Senate seats in the states of the old Confederacy are now Republican held.

The Voting Rights Act of 1965 prevented changes in voting laws from being imposed with pre-clearance by the Justice Department.  The Act had its intended effect.  Blacks voted and many black citizens were elected to public office throughout the South.

Voting Rights became the Democratic Party’s issue while voter suppression has of late emerged as a Republican strategy.  As late as the administration of George W. Bush, Congress passed extensions of the Voting Rights Act. Ronald Reagan approved an extension. Rep. Bob Goodlatte was a moderate on voting rights in the Congress but toward the end of his career, as Chairman of the House Judiciary Committee, he would not even hold a hearing on the subject.

Did Bob Goodlatte change?  Perhaps, but what clearly changed was the Republican Party.  When the Supreme Court approved the Shelby decision striking down the pre-clearance provisions of the 1965 law, states primarily, but not exclusively, in the South rushed to impose voter suppression laws.

Donald Trump had it right when he said if everyone voted, Republicans would have a hard time winning elections.  Trump didn’t want people to vote in Atlanta, Detroit and Philadelphia because they had a high number of black voters.  Black voters heavily favor the Democratic Party.  How to beat them?  Prevent them from voting.

Some states have long used mail-in voting.  Military personnel deployed in foreign lands use mail-in voting.  Tom Paine never imagined that the U.S. military would be based in Iraq or anywhere else.  Yes, the Founders wanted it to be hard to vote.  Voting rights for women or blacks, unthinkable.  Mail-in ballots were never an issue until Donald Trump and the Trump Party made it an issue.  Voter fraud was rare, but it became the thin reed on which to base voter suppression.

Has Jim Crow left the building?  Most certainly not and that is why we need a new voting rights law that makes it easier, not harder to vote.  It is alarming that so many of our fellow citizens do not bother to vote.  Voting is the foundation of our democracy.  Those who undermine voting rights undermine democracy itself.

Tom Howarth
Warren County, Virginia

(Note: Tom Howarth holds a Masters’ Degree in Public Affairs from the Lyndon B. Johnson School of Public Affairs at the University of Texas at Austin; he taught constitutional government at Northern Virginia Community College; and is a former aide to the late Senator Frank R. Lautenberg, D-NJ.)

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