It was 1936, and it had been a difficult few years for President Franklin Roosevelt at the Supreme Court. Congress moved quickly to pass Roosevelt’s New Deal agenda, and the nine justices ruled swiftly to throw much of it out.
“No Supreme Court in history had ever struck down so many laws so quickly,” Jeff Shesol wrote in his 2010 book Supreme Power: Franklin Roosevelt vs. the Supreme Court. “Between 1933 and 1936, the Court overturned acts of Congress at ten times the traditional rate.”
The National Recovery Administration’s minimum wages and maximum hours for workers. The Agricultural Adjustment Act’s payments to farmers not to grow crops. The Guffey Coal Act’s price controls on coal. The Supreme Court struck them all down, signaling the clear limits they wanted to impose on the New Deal’s sweep.
Much like 2012 for President Barack Obama, 1936 was also an election year, and Roosevelt’s challengers hoped they could capitalize on the president's defeats at the Court.
“The Republicans were desperate to draw him out on the court issue. They really wanted to make it an issue in the campaign, because they believed he must be hatching some kind of secret plot to curb the Supreme Court,” Shesol said by phone on Wednesday. “He was, in fact, hatching a secret plot to do something about the Supreme Court, and he was not at all interested in having that be an election issue, because he understood how easy it would be to demagogue the issue on the other side.”
Roosevelt’s secret plot was his so-called court-packing plan, which would have allowed the president to appoint a new Supreme Court justice when a sitting judge reached the age of 70. The proposal would “bring to the decision of social and economic problems younger men who have had personal experience and contact with modern facts and circumstances under which average men have to live and work,” Roosevelt contended in a fireside chat in 1937. “This plan will save our national Constitution from hardening of the judicial arteries.”
It was a political disaster. Roosevelt couldn’t get the proposal passed, and the effort was resoundingly rejected by the public as an inappropriate power grab.
But the court makeup began to change even without expanding executive powers, and it began what would be a 75-year span of limited court restrictions on Congress’ ability to legislate economic policy.
“Beginning in 1937, the Court really did get out of the way of economic policymaking, generally,” Shesol said. “And so there has not been a meaningful challenge, not on this scale, to a centerpiece economic policy since the 1930s. There was no challenge like this to any of the Great Society programs. Not in a meaningful way.”
So the historical parallels to the current moment for President Obama are at once legal and political. Like the constitutional challenge to the health insurance mandate, many of the Supreme Court defeats in Roosevelt’s first term hinged on Constitution’s Commerce Clause.
If the Supreme Court rejects the signature legislative achievement of Obama’s presidency, count on his Republican opponents to capitalize on any potential murmurs from President Obama’s displeasure with the court along the lines of his criticism of the Citizens United decision during the 2010 State of the Union.
Shesol, a former Clinton speechwriter who currently works for Democratic Congressional campaigns, said that while a health care defeat in the Court will likely energize Obama supporters, it’s unlikely that Obama will try to capitalize on the campaign trail.
“He's not campaigning against the Court,” Shesol said about Obama’s likely reaction to a defeat in the Court. “I think the president is wise enough to see that there's no margin in it. You might get certain parts of your base energized by attacking a right wing or corporate Supreme Court or whatever label you want to put on it, but there's nothing you can do about it.”
That’s in line with Roosevelt’s winning reelection talking points that took pains to avoid the judiciary.
Here’s what’s different in 2012, though. Roosevelt’s New Deal programs enjoyed broad public support, and Roosevelt was even more popular than those programs. He went on to win a second term in a landslide, with more than 60 percent of the popular vote and took every state but Maine and Vermont.
But for Obama detractors like Janet Spencer, who leads a Tea Party group in South Carolina and told me she “wasn’t an activist until January 2009,” the drive to defeat Obama extends beyond a single court ruling.
“When you see that you're losing a lot of those individual freedoms, people are not going to settle back even if this individual mandate is done away with,” South Carolina Tea Party leader Janet Spencer said a day after she bused to Washington for a rally this week against the law. “I still think you're going to have the enthusiasm going into November.”
Anna Sale covers politics for WNYC, including the 2013 mayoral race. During the 2012 presidential election, she traveled the country to tell the stories of voters in early primary battlegrounds and swing states. She has hosted The Brian Lehrer Show and The Takeaway and contributed to NPR, Marketplace, PBS Newshour, the BBC, Slate, WGBH World Channel, Current TV, and NY1.
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