Above The Fray?

ED: This is BackStory. I’m Ed Ayers. On Thursday, a short-handed Supreme Court deadlocked on President Obama’s immigration plan. The president had sharp words for Senate Republicans who are refusing to consider his Supreme Court nominee.

BARACK OBAMA: They are allowing partisan politics to jeopardize something as fundamental as the impartiality and integrity of our justice system.

ED: This is hardly the first time the high court has been embroiled in partisanship. Consider 1937 when Franklin Roosevelt tried to add six extra justices.

JEFF SHESOL: There was total political chaos. Nothing else happened in Washington, except that they argued about this court-packing plan.

ED: Today on BackStory, we’re exploring the history of partisan politics and the Supreme Court. From impeaching a justice in the early republic to blocking C-SPAN, the Supreme Court has always struggled to stay above the fray. Politics and the Supreme Court, today on BackStory.

PETER: Major funding for BackStory is provided by the Shiocan Foundation, the National Endowment for the Humanities, the Joseph and Robert Cornell Memorial Foundation, and the Arthur Vining Davis Foundations.

ED: From the Virginia Foundation for the Humanities, this is BackStory with the American Backstory hosts. Welcome to the show. I’m Ed Ayers, here with Peter Onuf.

PETER: Hey there, Ed.

ED: And Brian Balogh.

BRIAN: Hi, Ed. We’re going to start off today with this breaking news from NBC on June 26, 1987.

TOM BROKAW: Good evening. Justice Lewis Powell, a courtly southerner, surprised almost everyone today by announcing his retirement from the US Supreme Court. His decision touched–

BRIAN: Any Supreme Court vacancy grabs headlines. But Powell’s announcement was particularly significant because of the role he played on an ideologically divided court.

MALE SPEAKER: Whether voting conservative, as President Nixon hoped when he appointed him, or liberal, Powell has been the so-called swing vote.

BRIAN: President Reagan’s pick to fill Justice Powell’s seat was conservative judge Robert Bork. This enraged some Senate Democrats, who feared Bork would move the Court and the law of the land decisively to the right.

EDWARD KENNEDY: Robert Bork’s America is a land in which women would be forced into back-alley abortions, blacks would sit at segregated lunch counters.

BRIAN: This is Senator Edward Kennedy, speaking out against Bork’s nomination less than an hour after it was announced.

EDWARD KENNEDY: And schoolchildren could not be taught about evolution.

NINA TOTENBERG: And what it did was it froze things.

BRIAN: That’s NPR Legal Affairs Correspondent Nina Totenberg.

NINA TOTENBERG: Politicians went, I’m not sure I want to get way out in front of this. I think I’ll just wait. In the meantime, Kennedy, who was an incredibly hard worker, started working the phones to make sure that happened, talking to leading interest group people, talking to moderate Republicans.

JEFFREY ROSEN: And it just was a constitutional drama, unlike any we’ve ever seen before.

BRIAN: Jeffrey Rosen is president of the National Constitution Center. In the summer of 1987, he interned for Senate Judiciary Committee Chair Joseph Biden. This gave him a front row seat for the Bork drama.

JEFFREY ROSEN: There had been contested hearings before.

NINA TOTENBERG: But this was the first one in modern memory when, out and out, front and center, there was an ideological fight.

JEFFREY ROSEN: Bork had been an extremely prolific and opinionated scholar who’d expressed views about all the most contested issues about constitutional law.

NINA TOTENBERG: He had opposed the public accommodations provisions of the Civil Rights Act.

JEFFREY ROSEN: He questioned landmarks of the Warren and Burger eras, including, most notably, the Griswold decision creating a constitutional right to privacy.

NINA TOTENBERG: He had written a lot of things that were considered just unacceptable to large numbers of people and not just liberal Democrats.

BRIAN: Bork supporters welcomed the prospect of a much more conservative court. But they were careful to champion the nominee’s qualifications, not his ideology.

MALE SPEAKER: Robert Bork is extremely well qualified, has the judicial experience, the educational experience. He writes well. He’s a real scholar.

PETER: The debate raged all summer. Finally, Robert Bork appeared before the Senate Judiciary Committee in September of ’87.

ROBERT BORK: I want to begin by thanking the president for placing my name in nomination for this most important position.

NINA TOTENBERG: He did not do any practice sessions with the White House, what are called murder boards. He thought those were for sissies.

ROBERT BORK: I am quite willing to discuss with you my judicial philosophy and the approach I take to deciding cases.

PETER: The committee was especially interested in Bork’s judicial philosophy, based on the theory of original intent.

NINA TOTENBERG: The idea of original intent is the meaning of the Constitution that the founding fathers had that it’s not a living document. It doesn’t change with time.

PETER: In Bork’s view, recent decisions in favor of abortion and desegregation did not fit the founders’ original intentions. And so the question of precedent and whether Bork would uphold those decisions dominated the hearings. Bork backpedaled on some of his more controversial views, trying to appear more moderate. And he told the Senate Judiciary Committee that he took precedent seriously.

NINA TOTENBERG: And I think it was Kennedy who said to him, did you ever say anything different? And he said no. And then Kennedy played a tape of Bork at Canisius College saying–

ROBERT BORK: I don’t think, in the field of constitutional law, precedent is all that important. And if you become convinced that a prior court has misread the Constitution, I think it’s your duty to go back and correct it.

NINA TOTENBERG: Which was exactly contrary to what he was testifying about at these very hearings. And I thought it was a devastating moment, because it put his word in question.

TOM BROKAW: The long and bitter debate over Robert Bork came to an end today when the Senate voted to reject his nomination to the US Supreme Court.

NINA TOTENBERG: Republicans have not, to this day, gotten over it. They call it being Borked.

MALE SPEAKER: Senator Hatch of Utah called it a “de-borkale,” a process so politically charged that all senators but one had felt called upon to announce their votes in advance.

BRIAN: The Senate eventually confirmed President Reagan’s third Supreme Court nominee, Justice Anthony Kennedy. But the battle over Robert Bork’s nomination had long-term consequences.

JEFFREY ROSEN: And it was the beginning of this process of polarization that basically turned the confirmation process into partisan war zones.

BRIAN: Rosen says politics have always been part of the nomination process. But recent presidents have been careful to nominate judges without paper trails or judges who advertise ideological leanings for fear that they’ll be Borked. Ever since the Bork hearings, nominees have faced the relentless gaze of 24-hour news networks and attack ads from interest groups.

JEFFREY ROSEN: I guess what’s unfortunate is just that it’s a political process that seems to have broken down. And that’s something that the Bork hearings set into motion.

BRIAN: Which brings us to President Obama’s stalled effort to fill the seat left by the late Justice Antonin Scalia.

BARACK OBAMA: Today I am nominating Chief Judge Merrick Brian Garland to join the Supreme Court.

BRIAN: Though Obama presents Judge Garland as a moderate, Senate Republicans have refused to even hold hearings, let alone vote on his nomination.

ED: For the most part, Supreme Court justices pride themselves on staying above the partisan fray. But is that possible or even judicious?

Today on the show, we’re looking at moments in American history when the high court has been at the center of partisan politics. We’ll hear about President Jefferson’s failed attempt to impeach Old Bacon Face, Supreme Court Justice Samuel Chase, and how Franklin Roosevelt’s infamous court-packing plan alarmed both conservatives and liberals. We’ll also explore how the Supreme Court came to have the final say in American law, even though it didn’t start out that way.

PETER: But first, we’re going to turn from the court’s media-saturated nomination process to the cloistered atmosphere inside the chambers. News organizations have lobbied for decades to bring cameras into the Supreme Court. But the justices have remained staunchly opposed.

RONNELL ANDERSON JONES: Every time that there is a hearing about the possibility of putting cameras in the Supreme Court, a justice will testify to the effect that we send a signal by not having cameras that we are different.

PETER: That’s legal scholar RonNell Anderson Jones. She’s worked in around the Supreme Court for many years, first as a clerk for Supreme Court Justice Sandra Day O’Connor and later as a lawyer and a journalist. She says that ban profoundly shapes the way the public sees and understands the court.

RONNELL ANDERSON JONES: Poll after poll suggests that more Americans can name a higher number of the seven dwarfs than they can name the nine justices of the Supreme Court.

PETER: Why are the justices dead set against cameras? Jones says it’s partly because of tradition.

RONNELL ANDERSON JONES: A lot of times at the Supreme Court, the answer to the question, why do we do things the way that we do is it is the way it has always been done.

BRIAN: But the justices oppose cameras in the courtroom for more philosophical reasons as well. Banning cameras and other recording devices conveys to the public that justices are not part of the 24-hour news cycle, that they are different from the politicians in Congress and the White House.

RONNELL ANDERSON JONES: Well, almost everything that the Court does is designed to signal that.

BRIAN: Is it true that people can’t even carry ballpoint pens into the Supreme Court?

RONNELL ANDERSON JONES: It was true for a very long time. In the late 1990s, when I was working in my first years at the appellate firm in DC that I worked for, no pens were allowed. And also at the time, the court had agreed to release transcripts of what happened. But it wouldn’t name the speaker from the bench. It would just say the Court, colon, and then some words that a particular justice had said. And so in order to be able to report, even to our own clients, as the junior-most person on the team, I was assigned to justices whose questions I essentially had to memorize so that later we could map that onto the transcript.

They’ve now moved to a place where transcripts are released the same day and where transcripts make reference to the specific questioner. Now audio is released only at the end of argument week, so long after the news cycle is passed or anyone’s interested in using them. So we can see that the Court is super protective of this realm and really very uncomfortable about moving toward additional transparency.

BRIAN: What about when you were on the other side of the bench? You clerked for Justice Sandra Day O’Connor. Were you on board with this, what some might call secrecy, at the time? Did you see some reason or rationale for it?

RONNELL ANDERSON JONES: When I was inside the Court as a law clerk, I could see the tensions that the justices themselves felt. They did not want to become seen as people who were involved in petty politics, that they were a part of the 24-hour news cycle. They didn’t want to be seen as the functional equivalent of a member of Congress or a member of the Executive Branch.

And their suggestion is that it would be better that they be seen as sort of an almost faceless institution. It’s not important who the justices are, because the work that they’re doing is more oracular. They’re in it for the long game. And they’re not making political decisions.

BRIAN: Yet they depend on the other branches to actually implement their decisions.

RONNELL ANDERSON JONES: Sure. The famous line here– it’s from Hamilton, who a law scholar has to always cite this year. This is important. But Hamilton famously stated this, that the judiciary, from the very nature of its functions, would always be what he called the least dangerous branch. Because the executive has the sword, he said. And the legislature has the purse. But the judiciary has nothing.

I think that the justices, in all of their cases, signal to us their otherness, in part because judicial review, the very task that they engage in, the task of assessing the constitutionality of the behaviors of these other two branches, the elected branches of government, this concept of judicial review is a concept that is largely of the Court’s own construction. They, themselves, made it up in the watershed case of Marbury versus Madison.

And that’s a very sensitive, precarious position for the Supreme Court to be in. Because all it has to back that is its own legitimacy. And so they’re very, very keen to be thought of as different, not just some other political branch. That would be very damaging to their goodwill.

BRIAN: And what of the transparency question? Just how far would you go? I get it. You advocate ballpoint pens in the Supreme Court. But how much farther would you go?

RONNELL ANDERSON JONES: Yes. I affirmatively am willing to side on the side of there being pens in the courtroom, yes. I think cameras would be an appropriate move. Our neighbors to the north in Canada have had cameras at their Supreme Court for a number of years. And there are cameras in the courts in all 50 states.

And those experiences and the experiences of other organized democracies across the world suggest that what happens is that there is this initial period of time in which people get used to the presence of cameras. And then they sort of forget that they’re there. And they ignore them. And then the primary audience is the sorts of people who sit around watching C-SPAN. It’s lawyers who want to get better at oral argument and law students and scholars and policy wonks.

And in a few big cases, right, the Brown versus Board of Educations and the Obergefell kinds of cases, maybe we’d all watch. And I think we would get a greater appreciation for how hard the case was, right? A better understanding that the court isn’t just simplistically doing what the headlines suggest, which is that it’s just taking a nose count of who would like gay people to be able to get married and who wouldn’t, but rather engaging in really complex legal inquiries about constitutional precedent and the role of the Constitution in our lives.

Now occasionally, what might happen, I think, if there were cameras, is that one of the justices might do something goofy or make a gaffe. And that would show up on the nightly comedy shows or it would go viral online. And the justices have indicated repeatedly that they are really concerned about that.

BRIAN: OK, RonNell. I’m going to put you on the witness stand now. Is the court really more insulated from politics than the other branches of government? Or do they just do a better job of hiding that because of these practices that you just talked about?

RONNELL ANDERSON JONES:  I actually think they are more insulated from politics than the other branches 90% of the time. And that’s the real tragedy of the lack of transparency at the Court. Because in my experience as a law clerk and certainly as a follower of the Court and a commentator on the Court in more recent years, is that a large number of cases at the Supreme Court are decided 9-0 or 7 to 2 or 6 to 3 on non-ideological divisions.

Now there are a small number of hot-button cases that are 5 to 4 and that are ideologically charged and that are divided on lines that probably line up with the appointing president of the individual justices. And those are the ones that get all the headlines.

But my sense is that if people were given the chance to watch those cases play out in detail, they would see that the divisions that the justices have are differences about how we think about our Constitution and how we operate in a constitutional democracy. And they would appreciate that even though there is an ideological undercurrent, it still isn’t the same as the Court making bald political decisions the way that we expect our elected officials to do.

BRIAN: RonNell Anderson Jones is a professor of law at the University of Utah.

PETER: Earlier, we were joined by NPR Legal Affairs Correspondent Nina Totenberg. We’ve also heard from Jeffrey Rosen, President and CEO of the National Constitution Center. His new book is Louis D. Brandeis, American Prophet.

BRIAN: At the turn of the 19th century, many Americans would not have been surprised to find a Supreme Court entangled in politics. After all, America was still a very new country, so there really weren’t formal political parties. But there were two major political factions. Am I right about that, Peter?

PETER: Yeah. I think it’s probably best to call them factions. You got the Federalists. That’s guys like John Adams and Alexander Hamilton. Opposing them are the Republicans, led by Thomas Jefferson. By 1800, the Supreme Court was dominated by Federalists. That’s because America’s first two presidents, Washington and Adams, had put those justices in office. Many of them were openly partisan.

KEVIN GUTZMAN: As the first Chief Justice John Jay was leaving office, he actually sent President Washington a letter saying that the chief goal of his chief justiceship had been quote, “the success of your administration,” unquote.

PETER: That’s legal scholar Kevin Gutzman.

KEVIN GUTZMAN: There was kind of an understanding, well, frankly, cooperative activity between the executive and the judiciary.

PETER: Gutzman says Federalist justices didn’t just write thank-you notes to their political patrons. They would often express their political views very publicly. One place they did so was in the lower courts. When the high court was not in session, the justices traveled around the country, serving as judges on federal circuit courts, a practice known as riding circuit.

KEVIN GUTZMAN: Supreme Court justices very energetically sought out people to have indicted, then to have prosecuted, and finally, to issue stiff sentences and giving grand jury charges in which they often slipped over into, frankly, partisan presentations.

ED: President John Adams had passed the Sedition Act, which made it possible to prosecute people who criticized the federal government. That law, combined with a highly partisan environment and Supreme Court justices who were willing and able to go after government critics, set the stage for a dramatic showdown, a showdown that centered on Supreme Court Justice Samuel Chase.

PETER: Chase was a staunch Federalist appointed to the Court by George Washington. As a justice, he openly campaigned on behalf of John Adams. His personality was as tough as his ruddy complexion, which earned him the nickname Old Bacon Face. On the bench, he didn’t mince his words.

KEVIN GUTZMAN: Chase was considered a nasty guy, because he called Republicans names. He accused them of being anti-Christian. He said they were proponents of democracy, which at the time meant the horrors of the ongoing French Revolution and the idea of majority rule was totally objectionable. Some atheists in politics were pushing for that and of course, meaning Thomas Jefferson.

PETER: The Sedition Act allowed Justice Chase to go after journalists who wrote slanderous things about President Adams and his policies. In one case, Chase targeted a salty pamphlet writer named James Callender.

KEVIN GUTZMAN: Chase told two different people, one of whom was a complete stranger to Chase, that he was going to have a grand jury impaneled. That grand jury would indict Callender, and he would then be tried and convicted. And ultimately he would be given a stiff sentence, which kind of puts me in mind of Stalin saying, first we try them. Then we shoot them.

PETER: True to his word, Chase had Callender convicted. The pamphlet writer received a sentence of nine months in prison and a $200 fine.

KEVIN GUTZMAN: All these things together amounted to making him, basically, the opposite of what a Jeffersonian Republican thought a judge ought to be. He ought to be a respecter of due process. He ought to be a respecter of freedom of speech. And well, when came right down to it, he ought to be a Republican.

ED: So it should be no surprise that when Thomas Jefferson and Republicans gained control over Congress and the White House in 1801, they turned their attention to the judicial branch.

KEVIN GUTZMAN: Republicans decided they would use the impeachment power to try to remove the most egregious offenders in the federal judiciary against the principle that federal judges should be politically neutral or at least they shouldn’t be publicly partisan.

ED: And sitting there on the Supreme Court–

KEVIN GUTZMAN: Chase is easily the biggest, fattest target.

ED: At Jefferson’s request, the House of Representatives began a proceeding that would be unheard of today. In 1804, they voted to impeach a Supreme Court justice. Essentially, they accused Chase of the demonstrable political bias, pointing to several grand jury cases, including Callender’s. The Senate, however, voted against conviction. And Chase was saved. He remained on the Supreme Court until his death in 1811.

PETER: Chase’s impeachment and acquittal is often held up as a defining moment in determining the balance of power between the Supreme Court and the other two branches of government. The impeachment served as a warning to justices to keep their political opinions to themselves. And the acquittal sent the message that sitting justices are off limits, regardless of their political leanings. But in Gutzman’s view, Chase’s acquittal has set another important precedent that put the justices on a pedestal, too far above the fray to be held accountable.

KEVIN GUTZMAN: Both Chief Justice Rehnquist and Justice O’Connor have written histories of the Supreme Court in which they said, well, one of the most important things that ever happened in America to give us an independent judiciary was Chase’s acquittal. In what sense should the judiciary be independent? Obviously, it should be independent when it comes to answering for outcomes in particular cases, right? But saying before a man is indicted he’s going to be convicted and he’s going to get a stiff sentence, this to me goes beyond independence. And it amounts to abuse. I don’t think anybody would try to justify it.

PETER: Well, Kevin, many historians would say that the Court got the message, and it backed off. They understood that if it got too embroiled and entangled in a power struggle with the other branches, well, maybe they’d lose, then. As a result, the Court has stayed away from controversy through much of its history. Of course, there are moments. They’re the ones that show up in the textbooks. But by and large, court justices have at least pretended to be above the fray and to be making decisions based on their interpretation of the Constitution. That’s the conventional interpretation. Is it one that you buy?

KEVIN GUTZMAN: People would say, well, after his acquittal, he didn’t behave that way anymore. But that doesn’t mean the precedent doesn’t stand and it hasn’t had a negative effect. What the Chase precedent stands for is that it will not be our rule that, if judges begin behaving in a partisan way, they can expect to be impeached. That’s what the Chase precedent should have stood for if he had been convicted. That’s what it would have stood for. And what it stands for now is regardless how politically they behave, they will not be impeached.

PETER: Right, right.

KEVIN GUTZMAN: And so we end up with a situation in which, ultimately, all the most important questions of domestic social policy are going to be decided by courts. That is not exactly a Republican system.

PETER: Kevin Gutzman is a professor of history at Western Connecticut State University and author of The Politically Incorrect Guide to the Constitution.

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ED: Kevin Gutzman just mentioned how the Supreme Court has the final word in cases involving constitutional rights. Everything from the right to privacy to free speech to same-sex marriage. That’s one of the reasons there was such a pitched battle over the nomination of Judge Robert Bork in 1987.

LARRY KRAMER: The particular stakes, of course, were whether Roe v Wade was going to be overturned or not.

ED: This is constitutional law scholar Larry Kramer.

LARRY KRAMER: But the deeper stakes were that it was really the moment to which popular political culture openly and expressly acknowledged the fact that the Supreme Court was going to decide what our rights were, finally, that who got put on the Court was going to decide who had what rights.

ED: Kramer says there’s actually no legal or constitutional basis for the current Court’s supreme power, what lawyers call judicial supremacy. He says that in the early republic, the Supreme Court was weak compared to the Court we know today.

LARRY KRAMER: There’s no concept that the Court’s decision about the Constitution is better than, superior to that of the other branches or of the community at large. It’s co-equal. They have to decide also, but their decisions don’t take precedence over anybody else’s.

ED: So does that mean that the other two branches of government could basically ignore the Court’s decisions?

LARRY KRAMER: Yeah. Literally, that means that. And all of that is designed to force the issue back out to the only body that can really decide, which is the community at large.

ED: As we mentioned earlier, Thomas Jefferson defeated Federalist President John Adams in a contentious election of 1800.

LARRY KRAMER: Of the things that the Federalists did at the end of their administration was they reformed the judiciary and created all these new courts, the so-called Midnight Judges Act, because they did it at the very last minute, to strengthen their hold on at least that branch of government, because they had lost both the presidency and Congress in the election.

ED: Now, is this where Marbury versus Madison, which many people have heard of, comes in?

LARRY KRAMER: Exactly. At the end of the administration, they had prepared the commissions for all these new judges and justices of the peace, which are just pieces of paper that say that the job is yours. But they didn’t deliver them all, because Jefferson wasn’t, in fact, going to give all of them jobs. William Marbury is one of the people who was supposed to get one of these commissions. So he brings a lawsuit to say Jefferson should give me my commission. And that comes to the Court at the same time as the challenges to the repeal of the Midnight Judges Act.

ED: There’s a lot of things converging at the same time.

LARRY KRAMER: Yeah. And this is the political issue of the day.

ED: Right, right.

LARRY KRAMER: That’s the thing people sometimes lose, because it’s so distant in time now. But I always tell my students, you know, Marbury v Madison in context is the Bush v Gore of its day.

ED: Right, right.

LARRY KRAMER: It’s a high political moment.

ED: But unlike Bush v Gore, the Supreme Court did not have the final say. It had no way to force Jefferson to give Mr. Marbury his promised job.

LARRY KRAMER: The thing is the Court knows if we actually order Jefferson to do something, he’s going to ignore us. So we can’t do that. But if we do nothing at all, we’re going to look so weak. It’s going to really hurt the institution of the Court.

ED: Wow.

LARRY KRAMER: Right. So on the one hand, they say, Jefferson, you violated the law by not delivering Marbury his commission. But then, how do I not order him to do something? So what they do is first they take the Judiciary Act of 1789, and they read it really broadly, probably incorrectly, in order to say, wow, you were wrong not to deliver the commission.

We don’t have power to order you to do it, because the law, the Judiciary Act of 1789, that purports to give the Court the power to hear this case, that law is unconstitutional. Therefore, we have no jurisdiction, and we have to dismiss. So the renouncing of power, which is the we don’t have power to hear this case, is wrapped around the exercise of judicial review.

ED: In other words, we, the justices of the Supreme Court, are deciding that we don’t have the constitutional power to hear this case. The Supreme Court is exercising judicial review and deciding what its powers are under the Constitution.

BRIAN: OK, Ed. Sounds like a bunch of lawyers to me. And clearly, they avoided embarrassment. But you still need to explain to me why Marbury v Madison became such a big deal. It’s in all the textbooks.

ED: Well, don’t feel too bad, Brian, because for much of American history, nobody paid much attention to Marbury, until the Warren Court of the 1950s.

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After the Supreme Court’s landmark 1954 decision declaring school segregation unconstitutional and Brown v Board of Education, there was great resistance to the ruling across the South. The local school board in Little Rock, Arkansas filed suit to delay integration of Central High School. And a local trial judge granted the school board’s request. The black students and the NAACP appealed his decision all the way up to the high court, in a case known as Cooper v Aaron.

LARRY KRAMER: The Supreme Court in Cooper v Aaron says you have to enforce Brown v the Board of Education, and in the context of the opinion, ordering the judge to do that, cites Marbury v Madison and makes the claim that the US Supreme Court is supreme in the interpretation of the Constitution.

ED: I see. So 150 years later, they sort of pull the book off the shelf and said, aha, here it is.

LARRY KRAMER: And misread it. Because it doesn’t say what they say it says. It explicitly doesn’t say what they say it says. In fact, the actual language in the opinion is that the courts as well as the other branches of government can interpret the Constitution, not that the Court above the other branches of government can.

ED: So how do they get away with that?

LARRY KRAMER: Well, but that starts a process. So now, for the first time in US history, you have an activist Court that is also liberal. And so the liberals who had always opposed judicial supremacy, that side of the political spectrum, flips and embraces the idea.

ED: Right. Right.

LARRY KRAMER: And the conservatives, who had always supported the idea, whether it was the Federalists or the Whigs or the Democrats around the Civil War or the Republicans around the time of the New Deal, they stay right where they are. And so the debate shifts in this period from debate over who interprets to a debate over how to interpret, with everybody agreeing it’s the Court.

ED: So do people not protest against this sort of seepage of an idea? Did nobody say, hey, look the emperor has no clothes? This is not really a real thing that everybody’s accepting.

LARRY KRAMER: Really, in the ’60s, it’s still OK to push back at the Supreme Court. If you remember, Richard Nixon runs a campaign, you know, impeach Earl Warren.

ED: Right. Right.

LARRY KRAMER: Right. That’s still kind of acceptable. But it’s becoming less and less so. Early on in the Reagan administration, his attorney general, Edwin Meese, writes a speech in which he asserts the traditional position of co-equal branches, quoting Lincoln and Jefferson. And you know, the Supreme Court isn’t final. It’s a co-equal branch. And he’s hammered for that. I mean, what’s so interesting, in other words, is that it’s a 180-degree reversal over what would have been true across most of American history.

ED: So do you think it would be better for America if we didn’t have this idea of judicial supremacy?

LARRY KRAMER: I do. For me, if you’re going to have judicial supremacy, then at least you should have judges who have sort of deep political experience and have had responsibility for making hard choices so that they really understand the consequences of what they’re doing. And the great irony of the growth of judicial supremacy is that as the Court became more and more powerful, the ability to put anybody on it who had that kind of experience has gone away, because they can’t make their way through the sieve of Senate confirmation.

And so now you have a Court that consists of nothing but legal technocrats, so when the law runs out, as it does in all those cases, when you get to the point where with just pure legal arguments you could go either way, they don’t have the experience and wisdom to take them that last final step and help guide the decision. They have nothing but ideology.

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ED: Larry Kramer is the former dean of Stanford Law School and the author of The People Themselves– Popular Constitutionalism and Judicial Review.

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Earlier, we heard about the constitutional drama over the failed nomination of Judge Robert Bork. 50 years earlier, President Franklin Roosevelt caused a full-blown constitutional crisis with his failed attempt to add six more justices to the court.

This is in 1937. Let me give you some background. After his election in 1932, President Roosevelt and Congress passed an ambitious array of federal programs designed to pull the economy out of a deep depression. But FDR’s New Deal encountered a major roadblock, the Supreme Court.

A majority of justices, standing on decades of conservative precedent, struck down many of his landmark programs as unconstitutional. This standoff between the president and the high court continued throughout Roosevelt’s first term.

JEFF SHESOL: Both sides saw this as an existential crisis, with the stakes very possibly being the survival of democracy.

ED: This is writer Jeff Shesol. He says that Roosevelt feared that if his New Deal programs weren’t enacted, the economy would crater even more. The ensuing chaos would create conditions ripe for dictatorship, as in Germany and Spain and Italy.

JEFF SHESOL: On the other side, conservatives on the Supreme Court and conservatives in the country generally felt that Roosevelt was a dictator. They felt that the New Deal was the greatest consolidation of power in the hands of a president or in the hands of the federal government that anyone had ever seen and a total violation of the Constitution.

ED: This standoff came to a head in early 1937, right after Roosevelt’s reelection to a second term. The president announced, without consulting Congress, that he’d come up with a solution to his Supreme Court conundrum.

JEFF SHESOL: The simple and bottom-line fact for Roosevelt was this– he did not believe that the New Deal and the Constitution were in conflict. So the problem wasn’t the Constitution. The problem was, as they were known at the time, the nine old men on the Supreme Court. And so he had quietly come around to the idea that the easiest and most obviously constitutional thing to do was to increase the number of justices on the Supreme Court from nine to 15, which would give him six appointments overnight, and it would change the balance on the Supreme Court. Problem over.

ED: Actually, a problem not over. Now FDR’s plan was constitutional, since the Constitution doesn’t specify the size of the court. But Roosevelt was about to encounter a far more profound problem.

JEFF SHESOL: When Roosevelt proposed his court-packing plan, all hell broke loose in the country. Roosevelt didn’t simply say, let’s add six justices.

FRANKLIN ROOSEVELT: What is my proposal?

ED: Here’s Roosevelt explaining his court-packing plan.

FRANKLIN ROOSEVELT: It is simply this. Whenever a judge or justice of any federal court has reached the age of 70, a new member should be appointed by the president then in office, with the approval, as required by the Constitution, of the Senate of the United States.

JEFF SHESOL: Roosevelt had wrapped this idea in a kind of false justification that this was all about making the Court more efficient.

FRANKLIN ROOSEVELT: By bringing into the judicial system a steady and continuing stream of new and younger blood, I hope, first, to make the administration of all federal justice speedier and therefore less costly.

JEFF SHESOL: Everybody understood how old the Supreme Court justices were. And so Roosevelt suggested that they were falling behind in their work, which was untrue and unkind. And this was the rationale. And it was so transparent in its purpose that the fact that Roosevelt was being disingenuous led to a lot of suspicion about his motives.

ED: And I just want to underscore that Roosevelt had just won a historic landslide election, had huge majorities in Congress. So how did Congress react?

JEFF SHESOL: Congress reacted with horror when it learned of the court-packing plan. Now, there were a wide range of reasons why Congress was horrified. But to put it in the simplest terms, the conservatives in Congress were horrified that if Roosevelt did, indeed, get to appoint six new justices overnight that he would have, in their words, complete control of the federal government.

There were a lot of liberal opponents to the court-packing plan. And some of them were simply unhappy to have been left out of the discussion. And others really felt that this was a politicization of the Supreme Court. But to go ahead and say, I don’t like the decisions, and therefore we’re going to increase the number of justices and change the way the Supreme Court decides, that was several bridges too far for a lot of liberals and progressives in the Congress and in the country.

SAMUEL PETTENGILL: I shall not be a party to breaking down the checks and balances of the Constitution.

FREDERICK VAN NUYS: This is more power than a good man should want or a bad man should have.

ARTHUR VANDENBERG: This is a non-partisan battle to preserve an independent Supreme Count.

ED: Those were the voices of Democratic Representative Samuel B. Pettengill, Democratic Senator Frederick Van Nuys, and Republican Senator Arthur Vandenberg. Jeff, they sound dead set against Roosevelt’s plan. Tell me how this all worked out.

JEFF SHESOL: There was total political chaos. Nothing else happened in Washington, except that they argued about this court-packing plan. The New Deal was shut down. Virtually every other function of government was consumed by this argument and what was going to happen with this plan. And then in the most dramatic development of this entire period of time came what’s called the switch in time that saved nine.

And that was in April and May 1937. The Supreme Court actually flipped on two important cases. One was a state minimum wage case, where it reversed the position that it had taken just a year before. And the other was that it upheld Social Security, which nobody expected. And at this point, it really seemed that there was no reason to pack the Court at all.

The Court, by switching direction, by flipping and then upholding New Deal programs had saved itself. But Roosevelt was stuck at this point. What had begun as a battle between himself and the Court was now a battle between himself and the Congress. And he absolutely refused to back down.

ED: And did Congress give him his comeuppance?

JEFF SHESOL: Congress gave him his comeuppance. And they tried. The Southern Democrats, the conservative Democrats who were loyal to him and loyal to the New Deal, even if they didn’t love it, they came to him and they said, Mr. President, please be reasonable. This is in June of 1937. They said, you can’t get all six justices. But we will give you four. And if you’ll agree to that, you can have a court not of nine but of 13. And you’ll have that majority that you want.

But Roosevelt absolutely refused to compromise. He did not want to be seen as giving in. And his refusal to compromise doomed the plan completely. And so in July of 1937, they shot it down. And it really poisoned the well for the rest of Roosevelt’s second term.

The truth is if the global situation hadn’t changed and Roosevelt hadn’t won reelection in 1940, we would look at him probably as having a very successful first term and a second term that accomplished almost nothing.

ED: What lessons do you draw from this remarkably fascinating episode? Are there legacies, legacies for the president, legacies for the Supreme Court, and for that matter, the congressional role in mediating between the two?

JEFF SHESOL: I do think that there’s a kind of legacy which is that there is a tremendous danger for presidents in over-politicizing the Supreme Court, whether it’s the president that’s doing it through the appointments process or whether, as is the case right now with the Senate blockade of Scalia’s seat, whether it’s the Congress that’s doing it, there is a sensitivity on the part of the public to the Supreme Court being treated as just another political actor. It is, indeed, a political actor. But it is not one of the elected branches. There are absolutely important differences that need to be respected and also protected.

ED: But in your reading of history, Jeff, don’t you feel that the Supreme Court has always been pretty deeply engaged in partisan politics?

JEFF SHESOL: The Supreme Court has always been a political institution, not only because it weighs in on political questions, but because anyone who gets to the Supreme Court has been engaged in public life and has all kinds of opinions, not just about the Constitution. But I think that there is a great investment that we have, as individuals and in a country, in the idea that the Supreme Court is somehow above the fray. It’s up there on Mount Olympus.

If you go ahead and you can see that these are partisan actors with strong political opinions and then you recognize that this undemocratic branch of government gets to be the last word, in fact, on some of the weightiest matters of policy, it’s an unsettling thing. And so we recognize it, but we don’t always want to admit it to ourselves.

[MUSIC PLAYING]

ED: Jeff Shesol is a former speechwriter for President Bill Clinton and author of Supreme Power– Franklin Roosevelt Versus the Supreme Court.

[MUSIC PLAYING]

So help me understand something, guys. It just seems on the surface of things that the Supreme Court is undemocratic. There they are in robes, behind closed doors, interpreting law. Peter, did we mess up by creating the Supreme Court?

PETER: Well, Ed, our understanding of democracy is constantly changing. The key concept here is that of a people who declared independence and created the Constitution. And the Constitution’s a key thing. And it’s a statement for the ages about how their government will be organized for themselves and their children and their children’s children.

BRIAN: It’s kind of the operating system, isn’t it, Peter?

PETER: Yeah, you might say that. It’s a good way to put it. And when people get increasingly involved in ordinary politics and they get frustrated with the way the government is shutting down on their demands or that the Court is overruling their will, they say, well, hold it. We think there are a bunch of enemies of democracy who are hanging out in the Supreme Court, who are making life difficult.

ED: Yeah. So let me cite no less an authority than Abraham Lincoln on that front. He becomes president because he actually pushes back against the supremacy of the Supreme Court. This Dred Scott thing, he says, whoa, no, no, no, no, no. This is not what the founding fathers, whom he reveres, had in mind that all. This is the Supreme Court gone corrupt. And so Lincoln pushes back against this. So then, the whole Civil War, basically, is a constitutional crisis. Who’s in charge? And it ends up, the people with guns are in charge.

And that’s one reason that there’s a quote I want you guys to help me explain. So after the Civil War and Reconstruction, Thaddeus Stevens, the most outspoken radical, says this, in this country, the whole sovereignty rests with the people and is exercised through their representatives in Congress assembled. No any one official from the president and chief justice down can do any one act which is not prescribed and directed by the legislative power. So it doesn’t sound to me, Peter, as if people actually read the instructions manual for that operating system.

PETER: No, I think that’s right. And you’d look at the radical Republicans and say, well, who are these guys? Do they represent all of us? And I think that’s the problem. The most democratic branch, the most representative branch, is at best a fragment of the people at a given moment.

BRIAN: And it gets really interesting, guys, in the 20th century. Because certainly by the 1940s and the 1950s, we have these public opinion polls. They know exactly what’s going on. And guess what? Decisions of the Supreme Court reflect public opinion as measured by public opinion polls just about as well as Congress or the presidency does.

PETER: Maybe better these days, wouldn’t you say?

ED: So even though the Supreme Court is not on the hustings, they still know what people want?

BRIAN: You could make a good case, at least in the 20th century, that the Supreme Court is listening. And here’s a shocker– the men and women on the Supreme Court formed their opinions like the rest of us, and they move. I think the recent decision on gay marriage is a terrific example of that. The Court doesn’t have to be changed by inserting conservative here or liberal there for the Court to evolve in its thinking about key issues of the day. They, like us, read the newspapers and adjust.

PETER: But Brian, I got a problem with this formulation that we’re all agreeing on right now.

BRIAN: I knew you would. It’s too optimistic.

PETER: And that is when you talk about public opinion polls, what they reflect is not a unified will of the people. They reflect disagreement. And so what they also reflect is the possibility of managing and manipulating that opinion. And that’s what they’re all for. And I think that’s why there is such an incredible focus on the Constitution as this thing we all share that brings us together, even if it’s only in managing our disagreements. And I think that’s why the Court has such status and authority. I mean, it can frequently forfeit it by making stupid decisions, by running against the prevailing opinion of the times, but it continues to represent who we think we have always been, beginning with that fundamental act of self-creation.

BRIAN: And I hate to agree with you, Peter, but I have to admit the best evidence of what you’re saying is the very few times that the Constitution has been amended, if you think about the long history of the country. It’s not like we are willing to go in and throw out that operating system or change it very much very often.

[MUSIC – JASON GREEN, “NEW SET OF CONSTITUTIONS”]

PETER: That’s going to do it for today. But join us online and hand down your opinion on today’s episode. While you’re there, ask us your questions about our upcoming episodes on the history of the Republican Party and the history of women in politics. You’ll find us at backstoryradio.org or send an email to backstory@virginia.edu. We’re also on Facebook, Tumblr, and Twitter @backstoryradio.

And if you’re in the DC metro area, be sure to check out our live show about presidents and the press on July 19. You can reserve free tickets by going to the event page on Facebook. Whatever you do, don’t be a stranger.

BRIAN: BackStory is produced by Andrew Parsons, Brigid McCarthy, Nina Ernest, Kelly Jones, Emily Gadek, and Ramona Martinez. Jamal Millner is our technical director. Diana Williams is our digital editor. And Melissa Gismondi helps with research.

ED: BackStory is produced at the Virginia Foundation for the Humanities. Major support is provided by the Shiocan Foundation, the National Endowment for the Humanities, the Joseph and Robert Cornell Memorial Foundation, and the Arthur Vining Davis Foundations. Additional funding is provided by the Tomato Fund, cultivating fresh ideas in the arts, the humanities, and the environment. And by History Channel, history made every day.

FEMALE SPEAKER: Brian Balogh is professor of history at the University of Virginia and the Dorothy Compton Professor at the Miller Center of Public Affairs. Peter Onuf is professor of history emeritus at UVA and senior research fellow at Monticello. Ed Ayers is professor of the humanities and president emeritus at the University of Richmond. BackStory was created by Andrew Wyndham for the Virginia Foundation for the Humanities.

ED: BackStory is distributed by PRX, the Public Radio Exchange.