Presidential Commission on the Supreme Court of the United States
For opponents of Court packing, the historical condemnation of the 1937 Court packing plan illustrates what they regard as a fundamental principle of American constitutional government. For example, in 2004, Democratic lawmakers celebrated how “President Franklin Roosevelt’s efforts to control the outcome of the Supreme Court by packing it with loyalists was rejected by Congress in the 1930s, thereby preserving the independence of the federal judiciary.”[117] Republican lawmakers have also repeatedly denounced Roosevelt’s Court-packing plan.[118] On this view, the 1937 reform has long been regarded as one of the most disgraceful assaults on the Supreme Court in American history.[119] Opponents of Court packing also emphasize that those who resisted Court packing in 1937—particularly those who stood up to the President and leader of their own party—are seen as having shown tremendous political courage.
Opponents of Court packing argue that the strong bipartisan rejection of it has helped to preserve the Supreme Court’s constitutional role for much of the past century. There has been considerable pressure on this norm in recent years—as evidenced by the fact that the issue has come before this Commission. But one witness during the Commission’s public hearings noted opposition to expansion on the ground that there continues to be “[a] strong norm … that the political branches do not threaten or change the Court’s membership because of unhappiness with its decisions.”[120]
For opponents, the United States’ fidelity to this norm has particular significance in light of developments in other parts of the world where manipulation of the composition of the judiciary has been a worrying sign of democratic backsliding.[121] After his election in 1989, for example, Argentinian president Carlos Menem worked to draw greater power into the executive branch, and in 1990 he successfully added four new members to a formerly five-member supreme court.[122] In 2004, Hugo Chavez in Venezuela reined in judicial independence by expanding the size of the constitutional court from twenty to thirty-two.[123] In 2010, Turkish leader Recep Tayyip Erdogan’s populist party consolidated control over the Turkish constitutional court by expanding its membership from ten to seventeen and altering the process by which judges were selected.[124] In 2010, the populist Fidesz Party won a narrow majority in the Hungarian Parliament and quickly went about consolidating power, including through the addition of several new seats to the constitutional court.[125] In 2018, a package of judicial reforms in Poland forced sitting judges off the bench and dramatically expanded the size of the supreme court.[126] By contrast, these critics argue, stable democracies since the mid-twentieth century have retained a strong commitment to judicial independence and have not
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