Can Justice Breyer Become Joe Biden's Justice Brandeis?

Students, scholars and devotees of modern American political history are well aware that FDR’s 1937 “Court Packing Plan” was without question, the lowest moment of his 12+year presidency. Royally furious over a largely conservative Supreme Court’s dismantling of aspects of his New Deal (most notably in Humphrey's Executor v. United States, [a 9-0 ruling which ruled that the President may not remove a Federal Trade commissioner without cause]; Louisville Joint Stock Land Bank v. Radford , [a 9-0 ruling which declared the Frazier-Lemke Farm Bankruptcy Act unconstitutional], and the A.L.A. Schechter Poultry Corp. v. United States, [a 9-0 decision which essentially made the National Industrial Recovery Act unconstitutional] it made FDR see red and seek political retribution.

That retribution came in the form of a proposed piece of legislation which would ultimately sink like a heavily-weighted balloon. Shortly after his unprecedented trouncing (538-9 in the Electoral College) of Kansas Governor Alf Landon (a moderate Republican), FDR developed his plan to reform the court in secrecy, working with his attorney general, Homer Cummings, on a way to ensure the court would rule favorably about upcoming cases on Social Security and the National Labor Relations Act.

FDR’s retributive plan was to pass a law—the Judicial Procedures Reform Bill of 1937—that would allow the President to appoint an additional justice for every sitting justice who was over 70 years of age, and thus giving Roosevelt the authority to add six of his own justices to the court. With two liberals already on the bench, that would put the odds in well FDR’s favor. Roosevelt truly believed that coming on the heels of his overwhelming presidential victory and staggering Democratic majorities in both houses of Congress (338-89 in the House and 76-16 in the Senate) he could easily pass his bill, thus “packing” the Supreme Court for the foreseeable future. But such was not to be. One of key “carpenters” in putting the final nail in FDR’s “Court Packing” plan was his good friend and longtime adviser, Supreme Court Justice Louis D. Brandeis, the first Jewish member of that august body (he had been appointed by Woodrow Wilson in 1916).

Working through both political channels within Congress and face-to-face conversations with FDR, Brandeis (whom FDR reverently referred to as “Old Isaiah” likely because he possessed the bearing and moral gravitas of an Old Testament prophet) let it be known that he found the plan to be “a very destructive blow” and that it “impugned the integrity of the court.” Spurred largely by Brandeis, the momentum behind FDR’s proposed legislation began waning; so much so that editorialists across the country took pen in hand to denounce what they saw as the president’s hubris. The court packing plan became a major issue in the 1938 midterm elections: The Democratic Party lost a net of eight seats in the U.S. Senate and a net 81 seats in the U.S. House.

President Roosevelt lost the Court-packing battle, but he won the war for control of the Supreme Court . . . not by any novel legislation, but by serving in office for more than twelve years, and appointing eight of the nine Justices of the Court. (With the retirement of Justice Willis Van Devanter in 1937, the Court's composition began to move in support of Roosevelt's legislative agenda. By the end of 1941, following the deaths of Justices Benjamin Cardozo (1938) and Pierce Butler (1939), and the retirements of George Sutherland (1938), Louis Brandeis (1939), James Clark McReynolds (1941), and Charles Evans Hughes (1941), only two Justices (former Associate Justice, by then promoted to Chief Justice, Harlan Fiske Stone, and Associate Justice Owen Roberts) remained from the Court Roosevelt had inherited in 1933.

FDR’s failed court packing master plan took place more than 80 years ago. Now, in 2021, the issue has returned - if not with a vengeance, than at least to the nation’s editorial pages. Just this past Friday, President Joseph R. Biden, fearful that the 6-3 conservative court left him by his predecessor (thus making many of his legislative proposals dead in the water) ordered a 180-day study of adding seats to the Supreme Court. Yes, the possible return of FDR’s ill-fated plan. During the 2020 campaign, Biden promised to establish a bipartisan commission to examine the potentially explosive subjects of expanding the court or setting term limits for justices. While Mr. Biden, a former chairman of the Senate Judiciary Committee, has asserted that the system of judicial nominations is “getting out of whack,” he has declined to say whether he supports altering the size of the court or making other changes — like imposing term limits — to the current system of lifetime appointments.

Enter SCOTUS’s senior justice, 82-year old Stephen G. Breyer, possibly his generation’s “Old Isaiah.” Like Brandeis before him, Breyer is a progressive. Like Brandeis, he is a legal scholar of the first rank'; he still lectures at Harvard Law School, his alma mater. According to the highly-respected Oyez - a free law project from Cornell’s Legal Information Institute (LII) - Justice Breyer “ . . . is known for being the most pragmatic justice on the bench. His decisions are often guided by maneuvering around the real life consequences to the people affected by the decision.” It is with this background that Mr. Justice Breyer, in a recent speech (ironically, the “Scalia Lecture”) to students and faculty at Harvard, warned that expanding the size of the Supreme Court could erode public trust in it by sending the message that it is at its core a political institution. In his speech he explored the nature of the court’s authority, saying it was undermined by labeling justices as conservative or liberal. Drawing a distinction between law and politics, he said not all splits on the court are predictable and that those that are can generally be explained by differences in judicial philosophy or interpretive methods.

Not being a law school graduate, I can neither attest to nor disagree with Breyer’s rendering of court history. As one who has long studied and written about both SCOTUS and American political history, I am well aware of the various justices (like the late Chief Justice Earl Warren) who, once appointed to the bench, surprised both the public and legal community by becoming moderating forces. Yes, like it or not, the Supreme Court is, at base, a political institution. And yet, as Breyer noted with seeming satisfaction, “. . . the court did not hear or decide cases that affected the political disagreements arising out of the 2020 election.” And he listed four decisions — on the Affordable Care Act, abortion, the census and young immigrants — in which the court had disappointed conservatives.

Those rulings were all decided by 5-to-4 votes. In all of them, the majority included Chief Justice John G. Roberts Jr. and what was then the court’s four-member liberal wing to form majorities. in his valedictory at Harvard Law, “I hope and expect that the court will retain its authority,” Justice Breyer said. “But that authority, like the rule of law, depends on trust, a trust that the court is guided by legal principle, not politics. Structural alteration motivated by the perception of political influence can only feed that perception, further eroding that trust.”

I hope and pray that Breyer’s words, like those of Brandeis long before him, will fall forcefully on the ears, heart and mind of FDR’s newest successor . . . so as not to become a destructively telling issue in the 2022 midterm elections. Also, what goes around comes around . . . meaning in this case that were Biden’s version of some court packing/tenure limiting plan come into effect, sure as shooting, some other administration/Congress would make Democrats rue in anger the day it became law.

It is likely that Mr. Justice Breyer will be retiring before too long and returning to his beloved San Francisco. At that time, President Biden will hopefully be able to nominate - and get passed - a jurist of the mind, temperament and philosophy of Stephen Breyer. And then, like FDR, perhaps Democratic presidents will be able to outlive as many of the court’s conservative ideologues as possible and return that branch to its exalted perch.

“Old Isaiah” is keeping an eye out from his celestial seat.