BackStory; Above the Fray?: Ideology & the Court

This is backstory. I'm Ed Ayers. On Thursday, a short-handed Supreme Court deadlocked on President Obama's immigration plan. The president had sharp words for centric publicans who were refusing to consider his Supreme Court nominee. They are allowing partisan politics to jeopardize something as fundamental as the impartiality and integrity of our justice system. This is hardly the first time the high court has been embroiled in partisanship. Consider 1937, when Franklin Roosevelt tried to add six extra justices. There was total political chaos. Nothing else happened in Washington except that they argued about this court-packing plan. Today on backstory, we're exploring the history of partisan politics and the Supreme Court. From impeaching a justice in the early Republic to blocking C-SPAN, the Supreme Court has always struggled to stay above the fray. Politics and the Supreme Court. Today on backstory. Major funding for backstory is provided by the ShiaCon Foundation, the National Endowment for the Humanities, the Joseph and Robert Cornell Memorial Foundation and the Arthur Vining Davis Foundations. From the Virginia Foundation for the Humanities. This is backstory with the American History Guys.

Welcome to the show. I'm Ed Ayers, you're with Peter O'Roonough. Either Ed and Brian Ballot. Hi Ed, we're going to start off today with this breaking news from NBC on June 26, 1987. Good evening. Justice Lewis Powell, a courtly southerner, surprised almost everyone today by announcing his retirement from the U.S. Supreme Court. Now, any Supreme Court vacancy grabs headlines, but Powell's announcement was particularly significant because of the role he played on an ideologically divided court. Whether voting conservative as President Nixon hoped when he appointed him or liberal, Powell has been the so-called swing vote. President Reagan's pick to fill Justice Powell's seat was conservative judge Robert Bork. This enraged some Senate Democrats who feared Bork would move the court and the law of the land decisively to the right. Robert Bork's America is a land of which women would be forced into back alley abortions, blacks would sit at segregated lunch counters.

This is Senator Edward Kennedy speaking out against Bork's nomination less than an hour after it was announced. And school children could not be taught about evolution. And what it did was it froze things. That's NPR legal affairs correspondent Nina Tottenberg. Politicians went, I'm not sure I want to get way out in front of this. I think I'll just wait. In the meantime, Kennedy, who was an incredibly hard worker, started working the phones to make sure that happened, talking to leading interest group people, talking to moderate Republicans. And it just was a constitutional drama unlike any we've ever seen before. Jeffrey Rosen is president of the National Constitution Center. In the summer of 1987, he interned for Senate Judiciary Committee Chair Joseph Biden. This gave him a front row seat for the Bork drama.

There had been contested hearings before. But this was the first one in modern memory. When out and out, front and center, there was an ideological fight. Bork had been an extremely prolific and opinionated scholar who'd expressed views about all the most contested issues about constitutional law. He had opposed the public accommodations provisions of the Civil Rights Act. He questioned landmarks of the Warren and Berger eras, including most notably the Griswold decision creating a constitutional right to privacy. He had written a lot of things that were considered just unacceptable to large numbers of people and not just liberal Democrats. Bork supporters welcomed the prospect of a much more conservative court. But they were careful to champion the nominee's qualifications, not his ideology. Robert Bork is extremely well-qualified as the judicial experience, the educational experience. He writes well, he's a real scholar.

The debate raged all summer. Finally, Robert Bork appeared before the Senate Judiciary Committee in September of 1987. I want to begin by thanking the president for placing my name in nomination for this most important position. He did not do any practice sessions with the White House, what are called murder boards. He thought those were for sissies. I am quite willing to discuss with you my judicial philosophy and the approach I take to deciding cases. The committee was especially interested in Bork's judicial philosophy based on the theory of original intent. The idea of original intent is the meaning of the Constitution that the Founding Fathers had, that it's not a living document, it doesn't change with time. In Bork's view, recent decisions in favor of abortion and desegregation did not fit the Founder's original intentions and so the question of precedent and whether Bork would uphold those decisions dominated the hearings. Bork backpedaled on some of his more controversial views, trying to appear more moderate, and he told the Senate Judiciary Committee that he took precedent seriously.

And I think it was Kennedy who said to him, did you ever say anything different? And he said no. And then Kennedy played a tape of Bork at Kinesi's College saying, I don't think that in the field of constitutional law precedent is all that important. And if you become convinced that a prior court has misread the Constitution, I think it's your duty to go back and correct it. Which was exactly contrary to what he was testifying about at these very hearings. And I thought it was a devastating moment because it put his word in question. The long and bitter debate over Robert Bork came to an end today when the Senate voted to reject his nomination to the U.S. Supreme Court. For Republicans, have not to this day gotten over it, they call it being born.

The Senate eventually confirmed President Reagan's third Supreme Court nominee, just as Anthony Kennedy. But the battle over Robert Bork's nomination had long term consequences. And it was the beginning of this process of polarization that basically turned the confirmation process into partisan war zones. Resistance politics have always been part of the nomination process. But recent presidents have been careful to nominate judges without paper trails or judges who advertise ideological leanings for fear that they'll be borked. Ever since the Bork hearings, nominees have faced the relentless gaze of 24-hour news networks and attack ads from interest groups. I guess what's unfortunate is just that it's a political process that seems to have broken down, and that's something that the Bork hearings set into motion. Which brings us to President Obama's stalled effort to fill the seat left by the late Justice Antonin Scalia.

Today I am nominating Chief Judge Merrick Bryan Garland to join the Supreme Court. Though Obama presents Judge Garland as a moderate, Senate Republicans have refused to even hold hearings, let alone vote on his nomination. For the most part, Supreme Court justices pride themselves on staying above the partisan fray. But is that possible, or even judicious? Today on the show, we're looking at moments in American history when the high court has been at the center of partisan politics. We'll hear about President Jefferson's failed attempt to impeach Old Baconface, Supreme Court Justice Samuel Chase, and how Franklin Roosevelt's infamous court packing plan alarmed both conservatives and liberals. We'll also explore how the Supreme Court came to have the final say in American law, even though it didn't start out that way. But first, we're going to turn from the court's media-saturated nomination process to the cloistered atmosphere inside the chambers.

News organizations have lobbied for decades to bring cameras into the Supreme Court, but the justices have remained staunchly opposed. Every time that there is a hearing about the possibility of putting cameras in the Supreme Court, a justice will testify to the effect that we send a signal by not having cameras that we are different. That's legal scholar Ronnell Anderson Jones. She's worked in and around the Supreme Court for many years, first as a clerk for Supreme Court Justice Sandra Day O'Connor, and later as a lawyer and a journalist. She says that ban profoundly shapes the way the public sees and understands the court. Poll after poll suggests that more Americans can name a higher number of the seven dwarfs than they can name the nine justices of the Supreme Court. Why are the justices dead set against cameras? Jones says it's partly because of tradition.

A lot of times at the Supreme Court, the answer to the question, why do we do things the way that we do is it is the way it has always been done? But the justices oppose cameras in the courtroom for more philosophical reasons as well. Banned in cameras and other recording devices conveys to the public that justices are not part of the 24 hour news cycle that they are different from the politicians in Congress and the White House. Well, almost everything that the court does is designed to signal that. Is it true that people can't even carry ballpoint pens into the Supreme Court? It was true for a very long time. In the late 1990s, when I was working in my first years at the appellate firm in DC that I worked for, no pens were allowed. And also at the time, the court had agreed to release transcripts of what happened, but it wouldn't name the speaker from the bench. I would just say the court colon and then some words that a particular justice had said.

And so in order to be able to report even to our own clients as the junior most person on the team, I was assigned to justices whose questions I essentially had to memorize so that later we could map that onto the transcript. Now move to a place where transcripts are released the same day and where transcripts make reference to the specific questioner. Now audio is released only at the end of argument week. So long after the news cycle has passed or anyone's interested in using them. So we can see that the court is super protective of this realm and really very uncomfortable about moving toward additional transparency. What about when you are on the other side of the bench, you clerked for Justice Sandra Day O'Connor. Were you on board with this, what some might call secrecy at the time? Did you see some reason or rationale for it? When I was inside the court as a lockler, I could see the tensions that the justices themselves felt they did not want to become seen as people who were involved in petty politics that they were a part of the 24 hour news cycle. They didn't want to be seen as the functional equivalent of a member of Congress or a member of the executive branch.

And their suggestion is that it would be better that they be seen as sort of an almost faceless institution. It's not important who the justices are because the work that they're doing is more oracular. It is there in it for the long game and they're not making political decisions. Yet they depend on the other branches to actually implement their decisions. Sure, the famous line here, it's from Hamilton, who a law scholar has to always cite this year. This is important, but Hamilton famously stated this that the judiciary from the very nature of its functions would always be what he called the least dangerous branch. Because the executive has the sword, he said, and the legislature has the purse, but the judiciary has nothing. I think that the justices in all of their cases signal to us their otherness. In part because judicial review, the very task that they engage in, the task of assessing the constitutionality of the behaviors of these other two branches, the elected branches of government. This concept of judicial review is a concept that is largely of the court's own construction. They themselves made it up in the watershed case of Marbury versus Madison.

And that's a very sensitive precarious position for the Supreme Court to be in because all it has to back that is its own legitimacy. And so they're very, very keen to be thought of as different, not just some other political branch that would be very damaging to their goodwill. And what of the transparency question, just how far would you go? I get it, you advocate ballpoint pens in the Supreme Court. But how much farther would you go? Yes, I affirmatively am willing to side on the side of their being pens in the courtroom. Yes, I think cameras would be an appropriate move. Our neighbors to the north in Canada have had cameras at their Supreme Court for a number of years. And there are cameras in the courts in all 50 states. And those experiences and the experiences of other organized democracies across the world suggest that what happens is that there's this initial period of time in which people get used to the presence of cameras.

And then they sort of forget that they're there and they ignore them. And then the primary audience is the sorts of people who sit around watching C-SPAN right? It's lawyers who want to get better at oral argument and law students and scholars and policy wonks. And in a few big cases, right, the Brown versus Board of Education and the Obergefell kinds of cases, maybe we'd all watch. And I think we would get a greater appreciation for how hard the case was, right? A better understanding that the court isn't just simplistically doing what the headlines suggest, which is that it's just taking a nose count of who would like gay people to be able to get married and who wouldn't. But rather engaging in really complex legal inquiries about constitutional precedent and the role of the Constitution in our lives. And occasionally what might happen, I think if there were cameras, is that one of the justices might do something goofy or make a gap. And that would show up on the nightly comedy shows or it would go viral online. And the justices have indicated repeatedly that they are really concerned about that.

Right now, I'm going to put you on the witness stand now, is the court really more insulated from politics than the other branches of government, or do they just do a better job of hiding that because of these practices that you just talked about? I actually think they are more insulated from politics than the other branches 90% of the time. And that's the real tragedy of the lack of transparency at the court. Because in my experience as a law clerk and certainly as a follower of the court and a commentator on the court in more recent years, is that a large number of cases at the Supreme Court are decided 9-0, or 7-2 or 6-3 on non-ideological divisions. There's a small number of hot button cases that are 5-4 and that are ideologically charged and that are divided on lines that probably line up with the appointing president of the individual justices. And those are the ones that get all the headlines. But my sense is that if people were given the chance to watch those cases play out in detail, they would see that the divisions that the justices have are differences about how we think about our constitution.

And how we operate in a constitutional democracy. And they would appreciate that even though there is an ideological undercurrent, it still isn't the same as the court making bald political decisions the way that we expect our elected officials to do. Renelle Anderson-Gelens is a professor of law at the University of Utah. Earlier we were joined by NPR Legal Affairs correspondent Nina Totenberg. We also heard from Jeffrey Rosen, president and CEO of the National Constitution Center. His new book is Louis D. Brandeis American Profit. At the turn of the 19th century, many Americans would not have been surprised to find the Supreme Court entangled in politics. After all, America was still a very new country. So there really weren't formal political parties. But there were two major political factions. Am I right about that, Peter?

Yeah, I think it's probably best to call them factions. You got the Federalists. That's guys like John Adams and Alexander Hamilton opposing them are the Republicans led by Thomas Jefferson. By 1800, the Supreme Court was dominated by Federalists. That's because America's first two presidents of Washington and Adams had put those justices in office. Many of them were openly partisan. As the first Chief Justice John Jay was leaving office, he actually sent President Washington a letter saying that the Chief goal of his Chief Justice ship had been, quote, the success of your administration, unquote. That's legal scholar Kevin Goodsman. There was kind of an understanding, well, frankly cooperative activity between the executive and the judiciary. Goodsman says Federalist justices didn't just write thank you notes to their political patrons. They would often express their political views very publicly. One place they did so was in the lower courts. When the high court was not in session, the justices traveled around the country serving as judges on federal circuit courts, a practice known as writing circuit. Supreme Court justices very energetically sought out people to have indicted then to have prosecuted and finally to issue stiff sentences and giving grand jury charges in which they often slipped over into frankly partisan presentations.

President John Adams had passed this edition act which made it possible to prosecute people who criticize the federal government. That law, combined with a highly partisan environment and Supreme Court justices who were willing and able to go after the government critics, set the stage for a dramatic showdown. A showdown that centered on Supreme Court justice, Samuel Chase. Chase was a staunch federalist appointed to the court by George Washington. As a justice, he openly campaigned on behalf of John Adams. His personality was as tough as his ready complexion which earned him the next name pulled bacon face. On the bench, he didn't mince his words. Chase was considered a nasty guy because he called Republicans names. He accused them of being anti-Christian. He said they were proponents of democracy which at the time meant the horrors of the ongoing French revolution and the idea of majority rule was totally objectionable. Some atheists and politics were pushing for that. Of course, meaning Thomas Jefferson.

The edition act allowed Justice Chase to go after journalists who wrote slanderers things about President Adams and his policies. In one case, Chase targeted a salty pamphlet writer named James Callender. Chase told two different people. One of whom was a complete stranger to Chase that he was going to have a grand jury empaneled. That grand jury would indict Callender and he would then be tried and convicted. And ultimately, he would be given a stiff sentence which kind of puts me in mind of Stalin saying, first we try them, then we shoot them. Trudeau's word, Chase had Callender convicted. The pamphlet writer received a sentence of nine months in prison and a $200 fine. All these things together are mounted to making him basically the opposite of what Jeffersonian Republican thought a judge ought to be. He ought to be a respecter of due process. He ought to be a respecter of freedom of speech. And when it came right down to it, he ought to be a Republican.

So it should be no surprise that when Thomas Jefferson and the Republicans gained control of Congress and the White House in 1801, they turned their attention to the judicial branch. Republicans decided they would use the impeachment power to try to remove the most egregious offenders in the federal judiciary against the principle that federal judges should be politically neutral or at least they shouldn't be publicly partisan. And sitting there on the Supreme Court, Chase is easily the biggest fattest target. At Jefferson's request, the House of Representatives began a proceeding that would be unheard of today. In 1804, they voted to impeach a Supreme Court justice. Essentially, they accused Chase of demonstrable political bias, pointing to several grand jury cases, including calendars. The Senate, however, voted against conviction and Chase was saved. He remained on the Supreme Court until his death in 1811.

Chase's impeachment and acquittal is often held up as a defining moment in determining the balance of power between the Supreme Court and the other two branches of government. The impeachment served as a warning to justices to keep their political opinions to themselves, and the acquittal sent the message that sitting justices are off limits, regardless of their political leanings. But in Goodsman's view, Chase's acquittal is set another important precedent. It put the justices on a pedestal too far above the fray to be held accountable. Both Chief Justice Renquist and Justice O'Connor have written histories of the Supreme Court in which they said, well, you know, one of the most important things that ever happened in America to give us an independent judiciary was Chase's acquittal. In what sense should the judiciary be independent? Obviously, it should be independent when it comes to answering for outcomes in particular cases, right? But saying before a man is indicted, he's going to be convicted and he's going to get a stiff sentence. This, to me, it goes beyond independence and it amounts to abuse.

I don't know. I don't think anybody would try to justify it. Look, having many historians would say that the court got the message and he backed off. They understood that if it got too embroiled and entangled in a power struggle with the other branches, well, maybe they'd lose then. And as a result, the court has stayed away from controversy through much of its history. Of course, there are moments. They're the ones that show up in the textbooks. But by and large court justices have at least pretended to be above the free and to be making decisions based on their interpretation of the Constitution. That's the conventional interpretation. Is that one you buy? People would say, well, you know, after his acquittal, he didn't behave that way anymore. But that doesn't mean the precedent doesn't stand and it hasn't had a negative effect. What the chase precedent stands for is that it will not be our rule that if judges begin behaving in partisan way, they can expect to be impeached.

That's what the chase precedent should have stood for. If he had been convicted, that's what it would have stood for. What it stands for now is regardless how politically they behave, they will not be impeached. And so we end up with a situation in which ultimately all the most important questions of domestic social policy are going to be decided by courts. That is not exactly a Republican system. Kevin Goodsman is a professor of history at Western Connecticut State University, an author of the politically incorrect guide to the Constitution. Kevin Goodsman just mentioned how the Supreme Court has the final wording cases involving constitutional rights, everything from the right to privacy to free speech to same-sex marriage. That's one of the reasons there was such a pitched battle over the nomination of Judge Robert Bork in 1987.

The particular stakes, of course, were whether Roe v. Wade was going to be overturned or not. This is constitutional law scholar, Larry Kramer. But the deeper stakes were that it was really the moment at which popular political culture openly and expressly acknowledged the fact that the Supreme Court was going to decide what our rights were finally, that who got put on the court was going to decide who had what rights. Kramer says there's actually no legal or constitutional basis for the current court's supreme power, what Lawyers called judicial supremacy. He says that in the early republic, the Supreme Court was weak compared to the court we know today. There's no concept that the court's decision about the Constitution is better than superior to that of the other branches or of the community at large. It's co-equal. They have to decide also, but their decisions don't take precedence over anybody else's. So does that mean that the other two branches of government could basically ignore the court's decisions?

Yeah, literally. That means that, and all of that is designed to force the issue back out to the only body that can really decide, which is the community at large. As we mentioned earlier, Thomas Jefferson defeated Federalist President John Adams in the contentious election of 1800. One of the things that the Federalist did at the end of their administration was they reformed the judiciary and created all these new courts, the so-called Midnight Judges Act, because they did it at the very last minute to strengthen their hold on at least that branch of government, because they'd lost both the presidency and Congress in the election. Now, is this where Marbury versus Madison, which many people have heard of, comes in exactly. At the end of the administration, they had prepared the commissions for all these new judges and justices of the peace, which are just pieces of paper that say that the job is yours. But they didn't deliver them all, because Jefferson wasn't in fact going to give all of them jobs. William Marbury is one of the people who was supposed to get one of these commissions.

So, he brings a lawsuit to say, Jefferson should give me my commission, and that comes to the court at the same time as the challenges to the repeal of the Midnight Judges Act. There's a lot of things converging at the same time. Yeah, and this is the political issue of the day. That's the thing people sometimes lose, because it's so distant in time now, but I always tell my students, you know, Marbury versus Madison context is the Bush v. Gore of its day. It's a high political moment. But unlike Bush v. Gore, the Supreme Court did not have the final say. It had no way to force Jefferson to give Mr. Marbury his promised job. The thing is, the court knows if we actually order Jefferson to do something, he's going to ignore us, so we can't do that. But if we do nothing at all, we're going to look so weak, it's going to really hurt the institution of the court. So on the one hand, they say, Jefferson, you violated the law by not delivering Marbury his commission. But then how do I not order him to do something?

So what they do is, first, they take the Judiciary Act of 1789, and they read it really broadly, probably incorrectly, in order to say, while you were wrong not to deliver the commission, we don't have power to order you to do it, because the law, the Judiciary Act of 1789, that purports to give the court the power to hear this case, that law is unconstitutional. Therefore, we have no jurisdiction and we have to dismiss. So the renouncing of power, which is the we don't have power to hear this case, is wrapped around the exercise of Judicial Review. In other words, we, the justices of the Supreme Court, are deciding that we don't have the constitutional power to hear this case. The Supreme Court is exercising judicial review and deciding what its powers are under the Constitution. Okay, it sounds like a bunch of lawyers to me, and clearly they avoided embarrassment, but you still need to explain to me why Marbury V. Madison became such a big deal. It's in all the textbooks. Well, don't feel too bad, Brian, because for much of American history, nobody paid much attention to Marbury, until the war in court of the 1950s.

After the Supreme Court's landmark, 1954 decision, declaring school segregation unconstitutional and Brown be Board of Education, there was great resistance to the ruling across the South. The local school board in Little Rock, Arkansas filed suit to delay integration of central high school, and a local trial judge granted the school board request. The black students in the NAACP appealed this decision all the way up to the high court in a case known as Cooper V. Aaron. The Supreme Court in Cooper V. Aaron says you have to enforce Brown be the Board of Education, and in the context of the opinion ordering the judge to do that, sites Marbury V. Madison and makes the claim that the US Supreme Court is supreme in the interpretation of the Constitution. I see. So 150 years later, they sort of pulled the book off the shelf and said, aha, here it is. And misread it, because it doesn't say what they say it says. It explicitly doesn't say what they say it says. In fact, the actual language in the opinion is that the courts as well as the other branches of government can interpret the Constitution, not that the court above the other branches of government can.

So how do they get away with that? But that starts as a process. So now for the first time in US history, you have an activist court that is also liberal. And so the liberals who had always opposed judicial supremacy, that side of the political spectrum flips and embraces the idea. And the conservatives who had always supported the idea, whether it was the Federalists or the Wigs or the Democrats around the Civil War or the Republicans around the time of the New Deal, they stay right where they are. And so the debate shifts in this period from a debate over who interprets to a debate over how to interpret with everybody agreeing it's the court. So did people not protest against this sort of seepage of an idea and nobody say, hey, look, the emperor has no clothes. This is not really a real thing that everybody is accepting. Really in the 60s, it's still okay to push back at the Supreme Court. If you remember, Richard Nixon runs a campaign, you know, in peacher war.

Right. Right. That's still kind of acceptable. But it's becoming less and less so early on in the Reagan administration, his attorney general Edwin Mies writes a speech in which he asserts the traditional position of co-equal branches. Quoting Lincoln and Jefferson and, you know, the Supreme Court isn't final. It's a co-equal branch. And he's hammered for that. You know, I mean, what's so interesting in other words is that it's a 180 degree reversal over what would have been true across most of American history. So do you think it would be better for America if we didn't have this idea of judicial supremacy? I do. For me, if you're going to have judicial supremacy, then at least you should have judges who have sort of deep political experience and have had responsibility for making hard choices so that they really understand the consequences of what they're doing. And the great irony of the growth of judicial supremacy is that as the court became more and more powerful, the ability to put anybody on it who had that kind of experience has gone away because they can't make their way through the sieve of Senate confirmation. And so now you have a court that consists of nothing but legal technocrats. So when the law runs out as it does in all those cases, when you get to the point where with just pure legal arguments, you could go either way.

They don't have the experience and wisdom to take them that last final step and help guide the decision. They have nothing but ideology. Larry Kramer is the former dean of Stanford Law School and the author of The People Themselves, popular constitutionalism and judicial review. Earlier, we heard about the constitutional drama over the failed nomination of Judge Robert Bork. 50 years earlier, President Franklin Roosevelt caused a full blown constitutional crisis with his failed attempt to add six more justices to the court. This is in 1937, and let me give you some background. After his election in 1932, President Roosevelt in Congress passed an ambitious array of federal programs designed to pull the economy out of a deep depression.

But FDR's New Deal encountered a major roadblock, the Supreme Court. A majority of the justices, standing on decades of conservative precedent, struck down many of his landmark programs as unconstitutional. This standoff between the president and the high court continued throughout Roosevelt's first term. Both sides saw this as an existential crisis, with the stakes very possibly being the survival of democracy. This is writer Jeff Schessel. He says that Roosevelt feared that if his new deal programs weren't enacted, the economy would crater even more. The ensuing chaos would create conditions right for dictatorship as in Germany and Spain and Italy. On the other side, conservatives on the Supreme Court and conservatives in the country generally felt that Roosevelt was a dictator. They felt that the new deal was the greatest consolidation of power in the hands of a president or in the hands of the federal government that anyone had ever seen and a total violation of the Constitution.

This standoff came to a head in early 1937, right after Roosevelt's re-election to a second term. The president announced, without consulting Congress, that he had come up with a solution to his Supreme Court conundrum. The simple and bottom line fact for Roosevelt was this. He did not believe that the new deal and the Constitution were in conflict. So the problem wasn't the Constitution. The problem was, as they were known at the time, the nine old men on the Supreme Court. And so he had quietly come around to the idea that the easiest and most obviously constitutional thing to do was to increase the number of justices on the Supreme Court from nine to 15, which would give him six appointments overnight. And it would change the balance on the Supreme Court. Problem over.

Actually, problem not over. Now, FDR's plan was constitutional since the Constitution doesn't specify the size of the court. But Roosevelt was about to encounter a far more profound problem. When Roosevelt proposed his court packing plan, all hell broke loose in the country. Roosevelt didn't simply say, let's add six justices. What is my proposal? Here's Roosevelt explaining his court packing plan. It is simply this. Whenever a judge or justice of any federal court has reached the age of 70, a new member should be appointed by the president then in office, with the approval as required by the Constitution of the Senate of the United States. Roosevelt had wrapped this idea in a kind of false justification that this was all about making the court more efficient. By bringing into the judicial system a steady and continuing stream of new and younger blood.

I hope first to make the administration of all federal justice, media and therefore less costless. Everybody understood how old the Supreme Court justices were and so Roosevelt suggested that they were falling behind in their work, which was untrue and unkind. And this was the rationale and it was so transparent in its purpose that the fact that Roosevelt was being disingenuous led to a lot of suspicion about his motives. And I just want to underscore that Roosevelt had just one historic landslide election had huge majorities in Congress, so how did Congress react? Congress reacted with horror when it learned of the court packing plan. Now, there were a wide range of reasons why Congress was horrified, but to put it in the simplest terms, the conservatives in Congress were horrified that if Roosevelt did indeed get to appoint six new justices overnight, that he would have in their words complete control of the federal government. There were a lot of liberal opponents to the court packing plan and some of them were simply unhappy to have been left out of the discussion.

And others really felt that this was a politicization of the Supreme Court, but to go ahead and say, I don't like the decisions and therefore we're going to increase the number of justices and change the way the Supreme Court decides. That was several bridges too far for a lot of liberals and progressives in the Congress and in the country. I shall not be a party to breaking down the chicks and balances of the Constitution. This is more power than a good man should want or a bad man should have. This is a nonpartisan battle to preserve an independence Supreme Court. Those were the voices of Democratic representative Samuel B. Pettingill, Democratic Senator Frederick Van Nies and Republican Senator Arthur Vandenberg. Jeff, they sound dead set against Roosevelt's plan. Tell me how this all worked out. There was total political chaos. Nothing else happened in Washington except that they argued about this court packing plan.

The new deal was shut down virtually every other function of government was consumed by this argument and what was going to happen with this plan. And then in the most dramatic development of this entire period of time came what's called the switching time that saved nine. And that was in April and May 1937 the Supreme Court actually flipped on two important cases. One was a state minimum wage case where it reversed the position that it had taken just a year before and the other was that it upheld social security, which nobody expected. And at this point it really seemed that there was no reason to pack the court at all. The court by switching direction by flipping and then upholding new deal programs had saved itself. But Roosevelt was stuck at this point. What had begun as a battle between himself and the court was now a battle between himself and the Congress and he absolutely refused to back down. And did Congress give him his comeuppance? Congress gave him his comeuppance and they tried, you know, the southern Democrats, the conservative Democrats who are loyal to him and loyal to the new deal, even if they didn't love it, they came to him and they said, Mr. President, please be reasonable.

This is in June of 1937, they said, you can't get all six justices, but we will give you four. And if you'll agree to that, you can have a court, not of nine, but of 13 and you'll have that majority that you want. Roosevelt absolutely refused to compromise. He did not want to be seen as giving in. And his refusal to compromise doomed the plane completely. And so in July of 1937, they shot it down. And it really poisoned the well for the rest of Roosevelt's second term. If the global situation hadn't changed and Roosevelt hadn't won reelection in 1940, we would look at him probably as having a very successful first term and a second term that accomplished almost nothing. What lessons do you draw from this remarkably fascinating episode? Are there legacies, legacies for the president, legacies for the Supreme Court?

And for that matter, the congressional role in mediating between the two. I do think that there's a kind of legacy, which is that there is a tremendous danger for presidents in over politicizing the Supreme Court. Whether it's the president that's doing it through the appointments process or whether as is the case right now with the Senate blockade of scoliosis, whether it's the Congress that's doing it, there is a sensitivity on the part of the public to the Supreme Court being treated as just another political actor. It is indeed a political actor, but it is not one of the elected branches. There are absolutely important differences that need to be respected and also protected. But in your reading of history, Jeff, don't you feel that the Supreme Court has always been pretty deeply engaged in partisan politics?

The Supreme Court has always been a political institution, not only because it weighs in on political questions, but because anyone who gets to the Supreme Court has been engaged in public life and has all kinds of opinions, not just about the Constitution. I think that there is a great investment that we have as individuals and in a country in the idea that the Supreme Court is somehow above the fray is up there on Mount Olympus. If you go ahead and you can see that these are partisan actors with strong political opinions, and then you recognize that this undemocratic branch of government gets to be the last word, in fact, on some of the weightiest matters of policy. It's an unsettling thing, and so we recognize it, but we don't always want to admit it to ourselves. Shessel is a former speechwriter for President Bill Clinton, an author of Supreme Power, Franklin Roosevelt versus the Supreme Court.

So help me understand something, guys, it just seems on the surface of things that the Supreme Court is undemocratic. There they are in robes, behind closed doors, interpreting law, Peter, did we mess up by creating the Supreme Court? Well, at our understanding of democracy is constantly changing. The key concept here is that of people who declared independence and created the Constitution, and Constitution is a key thing in its statement for the ages about how their government will be organized for themselves and their children and their children's children. It's kind of the operating system, isn't it, Peter? Yeah, you might say it's a good way to put it. And when people get increasingly involved in ordinary politics, and they get frustrated with the way the government is shutting down on their demands or that the court is overruling their will, they say, hold it. We think there are a bunch of enemies of democracy who are hanging out in the Supreme Court who are making life difficult for us.

So let me cite no less authority than Abraham Lincoln on that front. I mean, he becomes president because he actually pushes back against the supremacy of the Supreme Court. This dreads Scott thing, he says, whoa, no, no, no, no. This is not what the founding fathers whom he reveres had in mind at all. This is the Supreme Court gone corrupt. And so Lincoln pushes back against this. And the whole Civil War basically is a constitutional crisis, who's in charge and the people with guns are in charge. And that's one reason that there's a quote I want you guys to help me explain. So after the Civil War and Reconstruction, Thaddeus Stevens, the most outspoken radical, says this, in this country, the whole sovereignty rests with the people and is exercised through the representatives in Congress assembled. No, anyone official from the president and chief justice down can do anyone act, which is not prescribed and directed by the legislative power. So it doesn't sound to me, Peter, as if people actually read the instructions manual for that, that operating system.

No, I think that's right. And you'd look at the radical Republicans and say, well, who are these guys? Do they represent all of us? And I think that's the problem. The most democratic branch, the most representative branch, is at best a fragment of the people at a given moment. And it gets really interesting, guys, in the 20th century, because certainly by the 1940s and the 1950s, we have these public opinion polls. They know exactly what's going on. And guess what? Decisions of the Supreme Court reflect public opinion is measured by public opinion polls, just about as well as Congress or the president that she does. Maybe better these days, wouldn't you say? So even though Supreme Court's not on the hustings, they still know what people want. You could make a good case, at least in the 20th century, that the Supreme Court is listening. And here's a shocker. The men and women on the Supreme Court form their opinions like the rest of us, and they move. I think the recent decision on gay marriage is a terrific example of that. The court doesn't have to be changed by inserting conservative here or liberal there for the court to evolve in its thinking about key issues of the day.

They, like us, read the newspapers and adjust. But Brian, I got a problem with this formulation that we're all agreeing on. I knew you would. It's too optimistic. And that is when you talk about public opinion polls, what they reflect is not a unified will of the people, they reflect disagreement. And what they also reflect is the possibility of managing and manipulating that opinion. And that's what they're all for. And I think that's why there's such an incredible focus on the Constitution as this thing we all share that brings us together, even if it's only in managing our disagreements. And I think that's why the court has such status and authority. I mean, it can frequently forfeit it by making stupid decisions by running against the prevailing opinion of the times. But it continues to represent who we think we have always been beginning with that fundamental act of self creation.

I also agree with you, Peter, but I have to admit, the best evidence of what you're saying is the very few times that the Constitution has been amended if you think about the long history of the country. It's not like we are willing to go in and throw out that operating system or change it very much very often. That's going to do it for today, but join us online and hand down your opinion on today's episode. While you're there, ask us your questions about our upcoming episodes on the history of the Republican Party and the history of women and politics. You'll find us at backstoryradio.org or send an email to backstoryatforginia.edu. We're also on Facebook, Tumblr, and Twitter at backstoryradio.

And if you're in the DC Metro area, be sure to check out our live show about presidents in the press on July 19th. You can reserve free tickets by going to the event page on Facebook. Whatever you do, don't be a stranger. Backstories produced by Andrew Parsons, Bridget McCarthy, Nina Ernest, Kelly Jones, Emily Gattick, and Ramona Martinez. Jamal Milner is our technical director. Diana Williams is our digital editor and Melissa Gismondi helps with research. Backstories produced at the Virginia Foundation for the Humanities. Major supporters provided by the ShiaCon Foundation, the National Endowment for the Humanities, the Joseph and Robert Cornell Memorial Foundation, and the Arthur Vining Davis Foundation. Additional funding is provided by the Tomato Fund, cultivating fresh ideas in the arts, the humanities, and the environment, and by history channel. History made every day. Brian Ballot is professor of history at the University of Virginia and the Dorothy Compton Professor at the Miller Center of Public Affairs.

Peter Onaf is professor of history emeritus at UVA and senior research fellow at Monicello. Ed Ayers is professor of the Humanities and president emeritus at the University of Richmond. Backstory was created by Andrew Wyndham for the Virginia Foundation for the Humanities. Backstory is distributed by PRX, the public radio exchange.