Progressives Want to Revive FDR’s Undemocratic Court-Packing Idea

Supreme Court
Tom Mullen

Reeling in horror over President Trump’s nomination of Brett Kavanaugh (or whomever Trump may have picked) to replace retiring Justice Anthony Kennedy on the Supreme Court, there are now a slew of progressive liberals calling for implementation of one of the most undemocratic ideas in the history of the Democratic Party: FDR’s “court-packing” scheme. Roosevelt responded to the Court striking down some parts of the New Deal by proposing Congress pass a law to allow him to add a new justice to the Court for every current justice over seventy years of age.

The bill was ultimately struck down by the Democrat-controlled Senate in 1937, but only after both the Social Security Act and National Relations Labor Act were ruled constitutional by the Court earlier that year. Opponents of the New Deal specifically or expansion of federal power through SCOTUS in general view these decisions as somewhat coerced by the threat of Roosevelt’s court-packing proposal.

Whether that’s true or not really misses the point. Seeking to achieve political goals through Supreme Court rulings rather than the constitutional amendment process—especially when those goals involve the federal government undertaking new powers—amounts to acquiring power without the consent of the governed. It’s ironic that it is again supporters of the “Democratic” Party who are advocating avoiding a vote on their proposals.

Democrats and Democracy

Conservatives reflexively answer any suggestion the American system is a democracy with the rejoinder, “No, it’s a republic.” While true, the line between republic and democracy is nowhere near as bold and dark as they would like to think. All “republic” really means is representative government, distinguished from pure democracy only in that the people themselves don’t legislate. The People’s Republic of China just as much a republic as the United States of America.

Even Jean-Jacques Rousseau, the Enlightenment-era father of the modern American left who believed the price of entering society was “the total alienation of each associate, together with all of his rights, to the entire community,” admitted “every legitimate government is republican.” What made the American system uniquely freer was not its republican form, but the limitation of powers delegated to both the state and federal governments.

Steeped in the philosophy of John Locke, the Founders believed, as Locke did, that no one could delegate a power over others he did not possess in the state of nature—not even to a democratically-elected government. But despite this lofty moral principle, Locke and the Founders also believed the only way to obtain the people’s consent to any power at all was a majority vote. And like it or not, the whole American constitutional system ultimately rests upon this democratic mechanism.

While it is true elections are not supposed to determine what the federal government does, only who administers its existing powers, the constitutional amendment process is no less democratic than elections. At the end of the day, delegating new powers to the federal government is achieved by proposing an amendment and having each state vote on it. While the requirement of a three-fourths majority of states may be harder to obtain than a simple 51 percent majority of all voters, even that requirement can be changed by amendment. The Constitution itself came into existence by a series of majority votes in each state. The United States of America is a democratic republic, for better or worse.

Abandoning the Democratic Process?

While there is certainly an argument to be made that conservatism in its purest form is as antithetical to American founding principles as progressive liberalism, it would be dishonest not to acknowledge that it is largely (but not solely) progressive liberals who have sought to expand federal governmental power through the Supreme Court rather than the Constitution’s amendment process. For all their talk of “one person, one vote,” they have systematically avoided this democratic process to delegate new powers to the federal government.

The New Deal, the Great Society, federal government regulation of education, marriage, and a host of other powers mentioned nowhere in the Constitution, all derive their supposed legitimacy from SCOTUS “discovering” those powers somewhere between the lines of the very clear and unambiguous words of the Constitution. One would assume a party calling itself “Democratic” would want to take a vote whenever there was any doubt about the consent of the governed. But knowing they likely wouldn’t be successful in obtaining consent legitimately for most of what they wanted the federal government to do, they found a way to obtain new powers without it.

Now, despite recent successes getting Obamacare and gay marriage through a majority conservative Court, progressives want to resurrect the even more autocratic court-packing idea to eliminate the last vestiges of conservative resistance to the unbridled power of this aristocratic institution. And given the hysteria gripping the left over the present occupant of the White House, it wouldn’t be surprising if this tyrannical proposition got some traction should the Democrats retake the White House and Congress by 2020. Let’s hope cooler and saner heads prevail in defeating this latest progressive assault on the foundational American principle of consent of the governed.



Tom Mullen is the author of Where Do Conservatives and Liberals Come From? And What Ever Happened to Life, Liberty and the Pursuit of Happiness? and A Return to Common  Sense: Reawakening Liberty in the Inhabitants of America. For more information and more of Tom’s writing, visit

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