Wanting to continue appearing relevant, lame-duck President Biden has come up with a plan to reform the Supreme Court. His plan brings to mind the infamous court-packing scheme that was proposed by President Franklin Roosevelt during the 1930s. Although FDR failed to get Congress to enact his plan, he ended up accomplishing what he set out to accomplish — a Supreme Court that would end up supporting, on a permanent basis, the welfare state and regulated economy that FDR foisted on the American people and that remains with us to this day.
To address the Great Depression, which had been brought on by the Federal Reserve’s monetary antics in the 1920s, FDR revolutionized American life with an economic program that consisted of a combination of socialism and fascism. He called it the New Deal.
The socialism part called for using the federal government to take money from people to whom it belonged and give it to people to whom it did not belong. It came to be known as the “welfare state.” Social Security was a prime example and ultimately became the crown jewel of America’s welfare-state way of life, notwithstanding the fact that Americans were ultimately indoctrinated into thinking that it was a retirement program in which they were supposedly getting their “money back.”
The fascist part called for using the federal government to manage, direct, control, or regulate economic activity. The National Industrial Recovery Act, with its infamous Blue Eagle emblem, was a prime example. It turned American businesses into cartels, which, combined with the power of the state, could determine prices, wages, output, and other economic phenomena that had customarily been left to a free market.
Not surprising, some Americans objected to this new way of life by challenging FDR’s programs in the federal courts. The Supreme Court, led by four justices known as the “Four Horsemen” — Butler, Van Devanter, Sutherland, and McReynolds — began declaring much of FDR’s socialist and fascist program in violation of the U.S. Constitution.
Roosevelt was furious. As far as he was concerned, he knew what was necessary to extricate the United States from the Depression and, from his standpoint, the Supreme Court was interfering with his plan for America’s economic recovery.
Therefore, FDR proposed a court-reform plan that would add a new justice to the Supreme Court for every justice who was over 70 years of age. The idea was to pack the Court with FDR’s legal cronies, who would then vote to uphold his programs.
Notwithstanding FDR’s tremendous popularity among the American people, there was a huge outcry against his court-packing scheme. People didn’t want the president or Congress to tamper with their judicial system. FDR was unable to get his scheme through Congress.
However, after FDR’s court-packing scheme went down to defeat, a justice named Owen Roberts made it clear that he would no longer vote with the Four Horsemen, which pretty much ensured that FDR would have his way with the Court. Roberts’s decision became known as the “switch in time that saved nine.” In the 1937 case of West Coast Hotel v. Parrish, the Supreme Court pretty much made it clear that it would never again declare any socialist or fascist economic program unconstitutional.
Once the Four Horsemen began retiring or dying, Roosevelt would simply replace them with statist lawyers who favored socialism and fascism. That trend has continued through today. The chance that any libertarian lawyer would ever be nominated to the Supreme Court and confirmed by a Senate filled with statists has been virtually nil. The closest was when a libertarian-oriented lawyer named Douglas Ginsberg was nominated to the Court by President Reagan. He was knocked out of consideration because he had smoked marijuana as a young man.
Thus, the Supreme Court — and, to a large extent, the entire federal judiciary — is permanently composed of statist lawyers — that is, lawyers who believe in socialism and economic fascism and who can be counted on to uphold the constitutionality of virtually any socialist and fascist economic program. Biden’s court-reform plan, even if it were to be enacted, would not change that.
