Should Obama Just Pack the Supreme Court and Get It Over With?

President Barack Obama's attack on the Supreme Court last night got The New Republic's Jeffrey Rosen pretty excited. After noting that "it takes only a few high-profile presidential attacks to tar a Court as activist in the eyes of history," Rosen makes the inevitable comparison to President Franklin Roosevelt, who denounced the Supreme Court for unanimously striking down FDR's beloved National Industrial Recovery Act (and the accompanying National Recovery Administration) in 1935 and then infamously threatened to pack the Court with New Deal-friendly justices in 1937. Is this a model of presidential behavior that Obama (and why not George W. Bush before him?) should emulate? Rosen apparently thinks so:

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.

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.

Read the whole thing here. I criticize FDR's court packing scheme here and profile a few of the New Deal's principled liberal opponents here.

Comments

[Old Mexican]

President Barack Obama's attack on the Supreme Court last night got the New Republic's Jeffrey Rosen pretty excited.

New Republic??? 'Nuff said.

[Joe M]

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.

SHOWDOWN! Hopefully, it won't end well for any of the three branches. That's the entire point, I believe.

[Fist of Etiquette]

Somehow I don't think history will be taking its cue from Obama.

[Episiarch]

Sometimes the craven, blatant stupidity of partisanship surprises even me, and liberal reaction to this Supreme Court decision is one of them. I think my contempt and disgust for partisan androids can't increase, and then something comes along, and there we go.

[Bingo]

Yeah, I've had a hard time at work today with the post-SOTU discussions. Usually I just ignore my progressive co-workers but I've had to physically walk away to the break room in order to avoid verbal confrontation.

The amount of self-righteous "we know whats best for all of society and we will implement it no matter what" opinions are getting a little out of hand.

[Kyle Jordan]

"I think my contempt and disgust for partisan androids can't increase, and then something comes along, and there we go."

You see, this is why I cyberstalk you here. You make so much damn sense it's not even funny.

Well said Epi.

[Michael Ejercito]

Sometimes the craven, blatant stupidity of partisanship surprises even me, and liberal reaction to this Supreme Court decision is one of them.

Yeah, many of them complained about corporations having freedom of speech.

Whom do they think own the New York Times, Washington Post, Los Angeles Times, and MSNBC?

Sole proprietorships?

[Tony]

This is a rare issue where the condemnation has been bipartisan.

I don't care so much that this gives the already-corporately-owned GOP a leg up, but rather that it means all of Congress has the potential to be stocked with corporate whores.

[heller]

"the potential to be stocked with corporate whores."

Wasn't that potential already reached a long time ago? I mean, not just corporate whores, but whores for whatever special interest pulls up to the badly-lit corner known as Capitol Hill and says, "Hey baby, I'm lookin for a little half n half, know what I'm sayin?"

If the ultimate objective is to limit corruption of power for special interests in Congress (which it apparently isn't), then why aren't we taking away those powers? You need two to play the bribery game, so why are we only focusing on the buyer and not the seller? Oh I know: Because the seller is the same person who is making the laws, and as long as the seller is making the laws, the seller will keep on selling.

[John]

It is just amazing how ignorant journalists are. It is one of the reasons I get so angry when journalists call Palin stupid. It is not so much in defense of Palin as it is my digust at the gall that any of these pinheads have to call anyone stupid.

First, packing the court pretty much killed the New Deal. Roosevelt no longer had bi-partisian support for his programs and all momentum for new reforms ended. It was a political disaster. And Roosevelt hadn't just been whacked in three straight off year elections like Obama. The New Deal was actually popular in the country. And packing the court still damn near killed his presidency. I am not really following how the Roosevelt court packing scheme is a good model to follow.

Further, what a ignorant petty little tyrant Rosen reveals himself to be. The Supreme Court better get the message. Considering the polls and the results of the last few elections, someone needs to get the message, but I don't think it is the Court.

[Citizen Nothing]

Palin is stupid.

[John]

That is nice you have that opinion. But, I am afraid you have to have an IQ in the tripple digits to make such a claim. And no one in the media seems qualified to do that.

[Other Matt]

Which, given the spelling of triple, may call into question people beyond the media.

[jester]

It rhymes with ripple. Maybe John is still drunk from last night. Now if he'd spelled it trippple, then we'd know he's a budding rap act.

[Fluffy]

Joe's Law strikes down yet another victim!

[ed]

Palin is stupid.

Not to mention an embarrassment to FOX News. Friends in high places counts for much in the news/entertainment biz, but there must be some uneasiness in those halls and studios. How long before she tires of this gig as well, and finally goes home and stays there?

[Jeffersonian]

I tend to agree, but the one thing I like about her is a big thing: She doesn't flatter herself in thinking that she has all the answers, like this Administration clearly does. I'd much rather have laissez-fair idiots running the government than brilliant busybodies.

[JRD]

So... where's the part where Rosen advocates Court-packing? It's certainly not in the part you quote.

[John]

Damon Root doesn't say that Rosen is advocating court packing. Root is just making fun of Rosen's pathetic little rant by saying "why don't you just get it over with and advocate court packing" which was of course a wildly upopular and crazy idea.

In reality Rosen isn't even smart enough to advocate that. Instead, he makes vague threats by saying

"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."

Yeah, Obama will get them and their little dog to!!

[JRD]

Ah-- guess you're right, though in that case Root seems to be drawing a false equivalence between a president criticizing a SCOTUS decision, which seems perfectly legitimate (regardless of the merits of the criticism), and FDR's inane Court-packing scheme.

[John]

No he is not. He is not talking about the President. He is talking about Rosen. Rosen does more than just criticize the Justices. He says to quote again

"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"

Rosen is going beyond just criticizing them and saying that the Justices better change or it "will end badly" whatever that means. To which Root rightly replies "why don't you just get it over with and advocate packing the court".

[JRD]

It seems pretty clear to me that "end badly" means "will be judged harshly by history due to the President's criticism," in the context of the immediately preceding paragraph. Rosen says nothing about Court-packing; again, Root seems to take the view that presidential criticism is tantamount to packing.

[Fluffy]

That's an absolutely moronic interpretation of Rosen's statement.

"End badly" means that someone somewhere at some indeterminate point in the future will write some meaningless history about the events in question?

Give me a break.

[JW]

Usually, when something is predicted to "end badly," it's usually preceded by "That's a nice [insert business or building] yous gots 'der. Be a shame if somethin' happened to it."

[Michael Ejercito]

Rosen is going beyond just criticizing them and saying that the Justices better change or it "will end badly" whatever that means. To which Root rightly replies "why don't you just get it over with and advocate packing the court".

Congress could remove justices from the Supreme Court with the impeachment process. If the Senate votes to remove a justice following a trial, then that is the final word.

[Tulpa]

You'd need a 2/3 majority in the Senate. You might as well try to pass an amendment to the Constitution.

[Suki]

You see who's laughing when he starts replacing Supreme Court Justices by Executive order! Ha!

He has all those troops he brought back from Iraq and Afghanistan the day after he took office to back him up too.

[Dorothy]

Not Toto

[All the President's Strawmen]

Yeah, Obama will get them and their little dog tBo!!

FIFY

[Alan Vanneman]

"Pack the Supreme Court"? You mean, choose SCt nominees at his own discretion, as the, um, the Constitution requires? Shockingly, I agree with the conservative Gang o' Five on corporate "speech" and the Democrats should get over themselves. But, seriously, doesn't every Administration "pack" the courts to the extent of its ability?*

*I doubt, very seriously, if Obama would waste time on FDR-style legislation that would add additional justices. That would be even more disastrous than, oh, health care reform.

[John]

Since Alito, Roberts, Kennedy, Scalia and Thomas are unlikely to retire anytime soon, the best TOOTUS can do is replace minority justices. What exactly Rosen thinks should be done about this remains a mystery.

[ap]

you tore down that strawman. no one was actually talking about what you just railed against. it may be a false equivalence on Root's part, but it was, um, a bit of humorous hyperbole.

[P B]

The more we see our "leaders?" acting like spoiled little children the better off we are. As others realize that our Reps are baffoons hopefully they will stop turning over important things to them. hopefully ...

[John Thacker]

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.

That's funny, I remember them as unprincipled activists because some of them cravenly switched their votes because of FDR unfairly attacking them.

[John]

And of course the "unprincpled activists" were the justices who voted to uphold and apply the existing precident of Lockner versus New York. Rosen is just fucking retarded. How do people that stupid get jobs writing?

[ms]

Reason writing staff will get back to you how they did it asap.

[zoltan]

Jobs writing is the key phrase here.

[The Gobbler]

Paging Peter Suderman. Paging Peter Suderman

[?]

The only FDR:Obama analogy I can think of that says anything about the world outside the analogizer's head is wheelchair:teleprompter. The reduced informational gatekeeping power of the press has allowed us to see it, but displaying knowledge of his reliance on it is strongly socially rejected (or defiant). So that gate's still working.

[John]

That is a good point. I wonder if someday they can make an Obama memorial statue where he is shown behind a podium with a teleprompter. The FRD memorial shows him in a wheelchair. The handicapped activists insisted on it. Well, I think the people in the world who are too stupid to give a speech without reading it, ought to be recognized.

[ms]

Interesting but how would you recognized Bushisms? A memorial designed to look like the set of Are You Smarter Than A 5th Grader?

[The Gobbler]

I know you are but what am I?

Grow the fuck up. This ain't Bush Country.

[ms]

You got me there turkey!
http://www.youtube.com/watch?v=XOGWbzUM-y8

[CoyoteBlue]

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.

Why?
- this Congress can't pass health care legislation
- this President can't bully/bribe through health care legislation
- this President can't get a democrat elected in Mass

What's he going to do? Bad mouth them on tv? Photoshop them as chimps on the internet?

[Marc]

Great minds...

[NeonCat]

-Have the Secret Service leave flaming bags of dog crap on their doorsteps.

-TP the Supreme Court building.

-Convince Sotomayor to break wind loudly whenever any of the conservative Justices speak.

[Marc]

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.

"Won't end well"? What does this even mean? Obama will stop inviting them to the Christmas party? Since when is SCOTUS subject to some kind of sanctions if they don't take orders from the president? Or Congress?

Damn those checks and balances!

[John]

If Roberts and comapny don't knock it off, future liberal historians will say bad things about them.

[Siara Delyn]

I hope the Congress does confront them. I hope that if Congress ends up being Republican after 2012 it continues to confront them. It was a corrupt and/or stupid decision.

[Lord Jubjub]

Congress could impeach them but that would open a can of worms that could doom democracy altogether. Not that they could hope to get anything close to the 2/3rds to remove any of the justices.

[Siara Delyn]

Maybe there's finally something the Democrats and Republicans can agree on: the Supreme Court made a horrible decision that damages the people's ability to express our will and get a full range of information before we vote

[John]

Ah I am going to have to say no to that. Although lots of people do agree about this decision, there is a small minority of Democratic partisian hacks who are pissed over the concept that anyone other than journalists and unions have the right to make political statements.

[Abdul]

John,

Didn't the provisions of McCain Feingold that Citizens United found unconstitutional apply to unions?

[John]

I thought it didn't. But perhaps I am wrong.

[John Thacker]

It applied to unions. It also applied to nonprofits, even nonprofits formed with the express intent of participating in politics.

The Supreme Court found that the burden of setting up a PAC was too high.

I'm a little surprised that no one on the Left has tried to make an issue and use nonprofits as a distinction.

[Mr. J]

It applied to unions also.

[Enjoy Every Sandwich]

a horrible decision that damages the people's ability to express our will and get a full range of information before we vote

How does it do that? For all of the rhetoric I have heard, I have not heard a coherent explanation of how this great evil will be done.

[Mr. J]

Really? If I recall it was the government's own lawyers who said during oral arguments that McCain-Feingold could be used to ban books.

Yet somehow this ruling is harmful to free speech?

My only complaint with the court is the decision wasn't unanimous.

[BHO]

J,

It is obvious how more books hurt speech. Say you go to a bookstore, and there is only one book for sale, like, say, "Audacity of Hope." Well, if you've only got time to read one book, you're reading "Audacity of Hope." But if you go a bookstore and there are like a dozen, or heaven forfend, a hundred, books for sale, the chance you will read something helpful, like "Audacity of Hope" goes way down. You might read something useless, like some detective novel, or even something inimical, like "Free Speech for Me ? But Not for Thee" by Nat Hentoff.

Fewer books equals more correct information. Call your senators and congressmen and tell them you oppose the Supreme Court's decision to let robber barons publish books!

[R C Dean]

See, Siara, I would have thought a law controlling who can say what, when, (you know, the law SCOTUS struck down) would be what "damages the people's ability to express our will and get a full range of information before we vote."

[Nick]

If people are so easily convinced by the advertisements created by corporations or unions or Hollywood actors or whomever else spouts off, that says a hell of a lot more about the stupidity of the average voter than it does about any possible corruption in government due to these same entities spending their own money.

Congress shall make no law... is pretty friggin' clear.

[JW]

Do you mean when the Court upheld parts of BCRA in McConnell vs FEC? I agree completely.

[John Thacker]

the Supreme Court made a horrible decision that damages the people's ability to express our will and get a full range of information before we vote

How? By saying that people who want to organize and put out a book, movie, or advertisement don't have to have the money, time, and knowledge of regulations needed to form a PAC?

How does making it easier for people to put out information damage free speech? The prior law hurt "the people" more than it hurt big businesses, who already had PACs.

[what]

god I hope the libtards in congress try to alter the supreme court and then are exposed (further) as anti-Constitutionalist retards

[Trueofvoice]

The Constitution doesn't specify how many justices sit on the Supreme Court, therefore changing the number is perfectly constitutional. Perhaps you should go buy a copy and try reading it.

[Enjoy Every Sandwich]

Ha, I wish the president would do that. The federal government would be more completely discredited than ever, as each succeeding president would twiddle with the number of justices to outflank his predecessor.

[triangleman]

I, for one, welcome our youthful and active Nineteen-Justice Supreme Court.

[Kiwi Dave]

The constitutional also doesn't say that BHO can't appoint himself, and, say, Pelosi and Barney Frank to the Supreme Court. Now we're talking!

[Tulpa]

Actually, only increasing the number is allowed on Congress' whim, as the Constitution forbids removing justices or decreasing their pay except through impeachment. To decrease the number they have to hope for a chain of retirements or deaths at an opportune moment.

[BeesInTheBrain]

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.
Unless I am reading the article wrong, Rosen's big threat to the Supreme Court is that Obama will become a catty little bitch and bad mouth them to everyone who will listen. Either that or write dirty limerics about them on the White House bathroom wall.

[The Gobbler]

There once was a Justice named Souter,
Who liked a big dick in his pooter,
But a final big thrust,
Caused his rectum to bust,
Along with his dreams of a suitor.

[marlok]

This made me laugh really hard.
Strong work.

[torpid]

Reason's big threat to the Democrats is that Reason will become a catty little bitch and bad mouth them to everyone who will listen.

[Tyler]

"they're headed toward a full-blown confrontation with the White House and Congress that won't end well for the Court."

I'm crossing my fingers and hoping for an 18th-century style duel.

[Ska]

Everyone knows pistols at dawn; how about throwing knives at mid-afternoon?

[Tyler]

What, and give an even greater disadvantage to the SCOTUS? Biden would tear that shit up!

[MlR]

I vote for tactical nukes at 5 feet, at noon.

[Trueofvoice]

You fine fellows do understand that it is perfectly reasonable for a sitting president to denounce a supreme court decision with which he disagrees, right? As for doing it at the State of the Union:

Article II, Section 3
He shall from time to time give to the Congress information of the state of the union, and recommend to their consideration such measures as he shall judge necessary and expedient.

The constitution expects him that he give his opinion. This is being blown WAAAYYY out of proportion.

[John Thacker]

0

[John Thacker]

Sure, and you do understand that it's perfectly reasonable to denounce the sitting president for lying about the decision, right? Since he certainly did lie.

[Wicks Cherrycoke]

Yes, sir, we do understand that. I believe it is his First Amendment right to "denounce a supreme court decision with which he disagrees." At least until Congress passes McCain/Feingold II and makes it illegal for sitting presidents to express opinions about SCOTUS decisions within 90 days of the State of the Union speech.

[ms]

Trueofvoice
STFU, I enjoy when they blow it WAAAYYY out of proportion.

[Enjoy Every Sandwich]

Have you looked at any of the lefty sites? Talk about being blown out of proportion; I've even seen suggestions that Alito should be impeached.

[ms]

Why would I look at a lefty site? I truly find libertarians to be entertaining.

[Kant feel Pietzsche]

I'm just glad Thomas was absent. HE might have gone 18th century and caned Barry's ass on national TV, brutha to brutha.

[Mike M.]

Remember how hysterical these lefties got when people on the other side criticized other decisions like the Kelo ruling? I even remember Charles Schumer back then basically saying that criticizing the Supreme Court was dangerous and unAmerican.

[Pro Libertate]

Frankly, I think it was inappropriate to attack the Court in that forum. It's a co-equal branch, and it's not like the Court gets an opportunity to rebut.

Obama isn't just incompetent and dishonest, he's also a classless asshole.

[John]

Imagine the case of the vapors these people would be having if Bush had called out the Supreme Court over Hamden during one of his SOTUs.

[Pro Libertate]

Yep.

[alan]

but the New Deal Court is remembered today as a group of unprincipled activists

It depends on who is doing the reminiscing. You, me, or the Little River Band.

As for the bullshit 'judicial activism' meme that is so hot with the left of late let us do a little thought experiment to clear up the confusion.

Suppose in an alternative history United States, an Italian-Greco style Syndicalist movement proved to have been successful and was the dominant strain in American politics (sure, we would be a lot poorer, but just go along for a minute). In this history, other corporate bodies, commercial enterprises, for instance, had far less sway in political power and representation than the Syndicalist.

In a pique to curb the power of the Almighty Workers Combine, congress managed to pass laws abridging the speech of the AWC in around 1974 during a time period where widespread corruption in the AWC briefly weakened their grasp on the Federal Government.

The Supreme Court takes a case up in 2009, decides in 2010 to overrule the previous law and the precedent that is built into it because the First Amendment does not make distinctions among the actors that get to speak.

Would the decision in this case be activist? No, no more so than is our current case because the decision is not results based, it is law based. The left protesting the decision is still the activist here because their protest is results based, and the excuses to uphold the precedent here that go beyond alarmist hand wringing are flimsy at best.

Sorry, that is some cute rhetoric you are using Sotomayorites, but we can still see through it.

[Tonio]

John @ 1:34: First, packing the court pretty much killed the New Deal.

John, FDR never got to actually pack the court. Court-packing was his failed attempt to increase the number of SCOTUS justices by as many as six (for a total of up to fifteen).

He tried this only after the sitting SCOTUS declared several new deal provisions unconstitutional.

[John Thacker]

John, FDR never got to actually pack the court. Court-packing was his failed attempt to increase the number of SCOTUS justices by as many as six (for a total of up to fifteen).

I think he means that the attempt to pack the Court severely hurt FDR's standing both with the American people and with a large group in his own party.

However, while that is true, the threat also is widely speculated to have caused "the Switch in Time that Saved Nine," whereby a majority of the SCOTUS found most of the New Deal Constitutional, and in return the Court wasn't packed.

[Jonas]

Why do I have this nagging feeling that all the acrimony over the Citizens United case is just going to make the conservative justices less likely to strike down Slaughterhouse in the McDonald decision?

I even wonder if that's not part of the point of calling the SCOTUS out... it's a way to preemptively attack upcoming decisions that will probably end up in conservatives' favor, hoping to sway the decisions.

[alan]

And gentleman, in the interest of fairness, let us let the retarded fetus have the last word.

Take it from here, Gway!

[Prolefeed]

Actually, I suspect all this acrimony over what should be viewed as an obvious reaffirmation of the 1st amendment is likely to make the 5 who voted correctly in this case to push even harder to reaffirm the 2nd.

[Gway]

Hopefully it will end the rant concerning "Judicial Activism" by that fat drug addict and those on Faux News-

[alan]

Had I known you would use the opportunity to hate on Jerry Garcia I would not have offered you that privilege. It is now revoked.

Ladies and Gentlemen, the guy who brought you The Castle! The man whose work seems so apt to our times,

franz kafka!

[franz kafka]

Hey Gay
Rush haS more brain cells in his foreskin than you have in your gay vapid head.

[pmp]

If anyone sees Jeffrey Rosen walking in the street, I urge you to pin him to the ground and take a steaming shit on his face. I hope that you ate extra spicy, slightly rancid Indian food before this confrontation.

For the love of freedom, puppy dogs, Apple Pie, Mom, and America, please TAKE A GIANT SHIT ON JEFFREY ROSEN'S FACE

(trust me, not only will you feel better but he'll look better after you're done)

[Walter]

It made since for the Democrats of the 30's to delegitimize the Supreme Court; that Court had been holding back socialism for 50 years.

But today's Democrats owe almost all their political gains of the last 40 years to Court action. Do they really want to throw that tool away?

[Lawrence Cecil]

The authority of the Presidents to select Suprem Court Justices should be revolked since it is clear that presidents do not represent the people of the United States!

[?????]

thank u