A perennial danger with pointing to historical precedent is that similar examples from the past can obscure the existing risks a nation faces.<\/p>\n
This has been the case with conversations about how Donald Trump misuses and abuses presidential power. Often, the president\u2019s supporters, as well as some conservative commentators who want to offer analysis without falling into \u201cTrump derangement syndrome,\u201d use historical comparisons as a way to show that what is happening today is not that different from before. In other words, that the republic will survive.<\/p>\n<\/p><\/div>\n
A perennial danger with pointing to historical precedent is that similar examples from the past can obscure the existing risks a nation faces.<\/p>\n<\/div>\n
This has been the case with conversations about how Donald Trump misuses and abuses presidential power. Often, the president\u2019s supporters, as well as some conservative commentators who want to offer analysis without falling into \u201cTrump derangement syndrome,\u201d use historical comparisons as a way to show that what is happening today is not that different from before. In other words, that the republic will survive.<\/p>\n
President Franklin D. Roosevelt, an icon of 20th-century Democratic politics, has been the focus of this kind of discussion. During a recent episode of one of my favorite podcasts, Left, Right, and Center<\/em>, the former White House communications director for Trump in 2017, Mike Dubke, told his colleagues during a discussion of Trump\u2019s efforts to exert federal control over elections: \u201cI go back in history and I look at the court packing that Franklin Delano Roosevelt tried to do when the Supreme Court ruled against his New Deal. And he said, my solution is we\u2019re just going to create new justices. We\u2019re going to expand the court, and I\u2019m going to nominate new justices that are going to vote.\u201d The point being, the United States has had this happen before and been fine.<\/p>\n It struck me that Dubke\u2019s use of this analogy is a prime example of how history can mask what is distinct about Trump from other presidencies. Even though many of FDR\u2019s critics accused him of being tyrannical, Roosevelt was still working within the boundaries of the constitutional system in ways that Trump has been willing to ignore.<\/p>\n The Supreme Court of the United States on Jan. 8, 1936. Imagno\/Getty Images<\/span> <\/p>\n<\/div>\n Roosevelt\u2019s court-packing plan, as it came to be called, was one of the president\u2019s boldest initiatives. By 1937, Roosevelt had grown frustrated with a Supreme Court that had struck down several of his biggest policies, including key sections of the National Industrial Recovery Act (NIRA), which had established codes for industry, as well as the Agricultural Adjustment Act.<\/p>\n<\/div>\n Four Supreme Court justices had proved to be especially hostile to the New Deal agenda. The \u201cFour Horsemen\u201d included Justices George Sutherland, Pierce Butler, James McReynolds, and Willis Van Devanter. The four justices had sometimes been joined by former Republican presidential nominee\u2014and chief justice\u2014Charles Evans Hughes on several key votes in 1935. And Justice Owen Roberts, whom President Herbert Hoover had appointed to the court, had aligned with the conservative majority in Schechter Poultry v. United States<\/em>, the landmark decision that undermined the NIRA . Many liberals were up in arms about what they saw as the convoluted logic behind the decisions. Speaking after one ruling in 1936, Interior Secretary Harold Ickes remarked<\/a>: \u201cIf this decision does not outrage the moral sense of the country, then nothing will.\u201d<\/p>\n Following his landslide victory against Republican Alf Landon in 1936\u2014Roosevelt won the election with over 60 percent of the popular vote and 523 Electoral College votes\u2014which also brought in massive Democratic majorities on Capitol Hill that weakened the Southern Dixiecrats, the president proposed legislation on Feb. 5, 1937, that would expand the size of the highest court. The plan had been formulated in secret with the guidance of Attorney General Homer Cummings. Most Americans were shocked by the announcement, including many Democratic leaders. But advisors had convinced the president to propose legislation rather than pursue a constitutional amendment because that would take too long before it could be ratified.<\/p>\n The Judicial Procedures Reform Bill would empower the president to make new judicial appointments for every sitting justice who was 70 years or older. The legislation allowed the president to expand the court by six, which would allow Roosevelt to create a solid liberal bloc with the two stalwart liberals already on the court. The pretext of the legislation was that the sitting justices on the Supreme Court were too old (average age<\/a> 71 years) and the courts too tied up to achieve results. A substantial reduction in the retirement packages for Supreme Court justices in 1932 had diminished the incentives for them to stop working. (\u201cI do not like the idea of losing half of my salary by retiring,\u201d noted Van Devanter in a private letter.) Most elected officials understood that the real objective of the plan was to create a more ideologically favorable majority.<\/p>\n Roosevelt and others in the administration were optimistic about the chances for passage. As the historian Laura Kalman argued in FDR\u2019s Gambit<\/em>, the legislation was seen as a rational, constitutional, and realistic plan to deal with a reactionary court. The election of 1936 had created a massive window for the president to move forward with reform. In a fireside address that he delivered<\/a> on March 9, Roosevelt told the nation: \u201cWe have, therefore, reached the point as a nation where we must take action to save the Constitution from the court and the court from itself. \u2026 We want a Supreme Court which will do justice under the Constitution\u2014not over it.\u201d<\/p>\n But Roosevelt had severely underestimated the opposition. Soon after Roosevelt announced the plan, critics warned that the president was attempting to move forward with a dangerous power grab that had echoes of the fascist governments that had come to power in Europe and Asia. One cartoon<\/a> with the caption \u201cDo We Want a Ventriloquist Act in the Supreme Court?\u201d depicted five justices standing in front of Uncle Sam, with Roosevelt smiling deviously behind them, as they chant: \u201cYes, Yes, We All Vote Yes!\u201d Senators and representatives were bombarded with letters from angry constituents. The radio airwaves were filled with vitriol about the authoritarian in the White House. Princeton University President H. W. Dodds warned Congress: \u201cIf popular government fails in America, it will not be by a blind repetition of European examples but by the creation of a lack of faith in democracy and a growing callousness to the brutality of authoritarianism.\u201d The president of the Church League of America raised concerns that religious liberty was under threat: \u201cIn every country where there has been extreme centralization of power, religious liberty is usually first to feel the mailed fist.\u201d<\/p>\n Wyoming Sen. Joseph O\u2019Mahoney, who had been a loyal supporter of the New Deal, came out against the president, saying<\/a>, \u201cThe right of the individual to be protected against the arbitrary use of power can be guaranteed only by the courts and if the independence of the courts is not maintained, all guarantees of freedom and justice vanish.\u201d Former president Herbert Hoover told radio listeners on Feb. 20 that the administration was attempting to send \u201ca troop of \u2018president\u2019s judges\u2019 \u2026 into the halls to capture political power. \u2026 That is not judicial process. That is force.\u201d<\/p>\n Most dramatically, Hughes sent written testimony to the Judiciary Committee, read by Montana Senator Burton Wheeler, picking apart the rationale: \u201cThere would be more judges to hear, more judges to confer, more judges to discuss, more judges to be convinced and to decide.\u201d<\/p>\n In June 1937, just a few months after Roosevelt had proposed the bill, the Senate Judiciary Committee completed a report in which a majority of the panel rejected the proposal as a dangerous and unnecessary encroachment on judicial independent independence. The final vote was 10-8. \u201cIt is a measure which should be so emphatically rejected,\u201d the committee majority declared<\/a>, \u201cthat its parallel will never again be presented to the free representatives of the free people of America.\u201d One of conservative justices, Van Devanter, retired that same month. In July, Senate Majority Leader Joe Robinson, who had provided the administration with legislative muscle to push the proposal, passed away.<\/p>\n Besides the fierce opposition, momentum for judicial reform had slowed because the Supreme Court issued a series of rulings favorable to the administration on landmark policies that included Social Security as well as the National Labor Relations Act. These rulings dampened the liberal perception of crisis. Roberts started voting in favor of administration programs, as well as upholding a state minimum wage law, which some observers called the \u201cswitch in time that saved nine.\u201d<\/p>\n A cartoon depicts Roosevelt\u2019s 1937 Supreme Court-packing plan and opposition to it. J.N. \u201cDing\u201d Darling via Getty Images<\/span> <\/p>\n<\/div>\n On July 22, only 168 days after Roosevelt put forward the proposal, the Senate voted 70-20 to recommit the bill to the Judiciary Committee, a vote that effectively rendered the proposal dead in the water. \u201cFor the first time,\u201d noted the Atlanta Constitution<\/em>, \u201cadministration leaders frankly admitted defeat.\u201d<\/p>\n Many historians have agreed that the proposal constituted one of Roosevelt\u2019s worst political mistakes. The proposal opened the president up to brutal attacks as even some loyal Democrats complained that he had gone too far. The failure was part of the backdrop, they argued, for the 1938 midterms, which saw sizable gains by the conservative coalition of Southern Democrats and Republicans who had been on the defensive for almost eight years. Roosevelt\u2019s effort to purge several conservative incumbents failed<\/a> with one exception. Democrats lost 72 seats in the House of Representatives and 8 in the Senate. Even those who concluded that Roosevelt\u2019s proposal was what created pressure on Roberts to switch his position (many don\u2019t agree with this conclusion) concurred that the political costs to Roosevelt and the Democratic Party were immense.<\/p>\n U.S. President Donald Trump shakes hands with U.S. Supreme Court Justice Amy Coney Barrett, among other members of the court, as he arrives to address a joint session of Congress at the Capitol in Washington on March 4. Saul Loeb\/AFP via Getty Images<\/span> <\/p>\n<\/div>\n Notwithstanding the similarities, the comparison between Roosevelt\u2019s court-packing and the deployment of presidential power under Trump 2.0 falls short. Most importantly, Trump has used executive power to flex his political muscle, not legislation (with the exception of the budget bill). With federal troops in cities, the Department of Justice going after opponents, the demands made of universities and law firms, strikes on Iran, as well as trade policy, Trump has not sought congressional support. In contrast, Roosevelt pursued his proposal through the legislative process, and he moved on when the Senate voted against him.<\/p>\n<\/div>\n Secondly, changing the size of the Supreme Court had precedent. The U.S. Constitution did not specify how many justices should serve on the court. In the Judiciary Act of 1789, Congress had set the court at six members, with one being the chief justice. The court changed size seven times between 1801 and 1869, until Congress finally settled<\/a> on nine justices. While previous congressional adjustments were not made with the same ideological goals that Roosevelt had in mind, changes to the size had been made often on Capitol Hill. Many of Trump\u2019s assertions of power, such as wielding the Department of Justice as a cudgel against political opponents or using emergency powers so liberally, tend to be precedent-making, rather than based on historical precedent.<\/p>\n<\/p><\/div>\n
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