The Volokh Conspiracy
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New Deal Justices and MAGA Justices
FDR appointed Hugo Black because he was a "thumping, evangelical New Dealer." Why can't Trump want a "thumping, evangelical MAGA warrior"?
The current outrage is that President Trump might seek to appoint judges who are in line with his MAGA agenda. This pearl clutching lacks any sense of history. Let's jump back about nine decades to the Democratic party's favorite modern president.
The centerpiece of President Franklin D. Roosevelt's domestic agenda was the New Deal. Roosevelt and New Dealers in Congress enacted statutes and reforms that clearly violated settled Supreme Court precedent. And, perhaps unsurprisingly, the Supreme Court halted several planks of his federal platform, as well as analogous state legislation.
FDR was so incensed by these rulings that he considered amending the Constitution to grant the federal government more powers. When that process seemed too difficult, he instead proposed the Court packing bill, to ensure there would be more Justices who supported his agenda. Ultimately, that plan never came to pass. Justice Owen Roberts, for one reason or another, began to uphold New Deal legislation. And soon enough, the Four Horsemen retired.
Biographer Howard Ball offers this account of how Roosevelt made his first Supreme Court appointment. Read it carefully: whenever you see the word "New Deal," substitute it for "MAGA." I think you'll get the picture quickly.
Consequently, Roosevelt turned to his attorney general, Homer Cummings, for a list of possible nominees to replace Van Devanter. Sixty names were produced, including federal judges, Solicitor General Stanley Reed, law professors such as Felix Frankfurter, and strong congressional defenders and advocates of the New Deal, including Senators Hugo Black of Alabama and Sherman "Shay" Minton of Indiana.
At a White House meeting, Roosevelt and Cummings agreed upon four criteria that the nominee had to meet. First, the nominee needed solid New Deal credentials; he had to be a "thumping, evangelical New Dealer," said Roosevelt (and Black was certainly that, having voted for all twenty-four of Roosevelt's major New Deal programs.) Second, he had to be confirmable in the Senate. Third, he had to be reasonably young. And finally, he had to come from a region of the country unrepresented (on the Court)--the West or the South. Using these criteria, by August 1, 1937, the two men had cut the list to seven names.
The seven included four federal judges (quickly dropped out because they were not economically liberal enough,) Solicitor General Reed (Kentucky), Senator Minton (Indiana), and Black. However, Reed, according to Roosevelt, "had no fire" and was dropped from consideration. . . .
Franklin Roosevelt, according to Harold Ickes, a Roosevelt Administration figure, liked Black very much. FDR thought Hugo was too liberal for his own state; while he was not as good a lawyer as others, he would make a good justice because of his support of New Dealism. According to Bill Douglas, at the time the new appointed chairman of the Securities and Exchange Commission (SEC), Roosevelt was attracted to Black for three reasons: his use of the investigative role of the Senate to shape the American mind of reforms, his strong voting record in the Senate, and his early support for FDR in 1933.
Douglas insisted that President Roosevelt chose Black because he wanted "to throw a 'tiger' as he put it, into the Court--an outstanding opponent of all that the old Court had done."
FDR wanted an economic liberal who supported his agenda, and would have courage on the Supreme Court. And who were Roosevelt's other picks: Solicitor General Stanley Reed, who defended New Deal policies in Court; Professor Felix Frankfurter, who provided the intellectual foundation of New Deal policies: William O. Douglas, who chaired the Roosevelt SEC; Attorney General Frank Murphy; Senator James Byrne, a New Dealer; Robert Jackson, the Solicitor General and Attorney General. FDR appointed all people close to him who he deemed loyal and supportive of the new Deal. Indeed, Byrne stepped down from the Court to take a position in the administration. Frankfurter continued advising Roosevelt even after he was appointed. These justices remained loyal to Roosevelt throughout.
If Trump simply said, "I want to appoint Justices like FDR did," would the left say "okay"? No. They'll say Trump is being hypocritical; progressives have no actual judicial philosophy, other than achieving progressive results, but conservative profess fidelity to originalism, which is not results oriented. Do as I say, not as I do.
For starters, I'm not sure Trump has ever said he was an originalist. And he has publicly disavowed those who supported his appointing originalists to the Court during his first term. Do you think anyone told Trump that appointing Justices who would overrule Chevron means that his policies get less deference?
Still, I will give Justice Black the benefit of the doubt, and assume was not just acting to support New Deal legislation. His judicial philosophy operationalized New Deal politics. His understanding of the Commerce Clause and other facets of federal authority led to decisions favorable to Roosevelt.
Relatedly, President Nixon wanted to appoint justices who were "tough on crime." As awful his picks were, Nixon succeeded on this limited front. The Burger Court scaled back the exclusionary rule and Miranda, even as they decided Roe v. Wade.
If Trump were to follow FDR's playbook, who would he pick? Let's see: who is a young Senator who supports the MAGA agenda who would be confirmed, and represents an under-represented part of the country? I think the obvious candidate would be Senator Josh Hawley. Plus, as a former Roberts clerk, that selection might even be enough to get Chief Justice to (at long last) retire.
