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Pat MurphyIf you followed the U.S. presidential election closely, you’ll know that control of the Supreme Court nomination process was one of the key issues. Given the power of the judiciary and the lifetime tenure of the appointees, that’s not surprising.

Nor was it new. In fact, 80 years ago this February, President Franklin D. Roosevelt sparked a major controversy when he began his second term by attempting to rearrange the composition of the Supreme Court.

Roosevelt undoubtedly felt chipper about the 1936 election results. With almost 61 percent of the popular vote and victory in 46 of the then 48 states, his win was sufficiently overwhelming that visions of omnipotence probably danced in his head.

In addition, Roosevelt’s Democrats had swept both the Senate and the House of Representatives, reducing the opposition Republicans to 16 of 96 seats in the Senate and 88 of 435 in the House. The Democratic majorities were enormous.

The only prospective fly in Roosevelt’s ointment was the Supreme Court. None of the nine justices were his appointees and all but two owed their positions to previous Republican administrations.

That, however, wasn’t the biggest problem. It was the court’s ideological orientation that bothered Roosevelt.

Drawing on decades of legal thinking, the court was skeptical, if not downright hostile, to regulation that interfered with the exercise of private property or contract rights. And such regulation was the modus operandi of Roosevelt’s New Deal.

The first direct clash came in 1935 when the Court, by an 8-1 margin, struck down a provision of the National Industrial Recovery Act. Other similar decisions followed, by margins ranging from unanimous to 5-4. Homer Cummings, Roosevelt’s attorney general, was privately blunt: “We will have to find a way to get rid of the present membership of the Supreme Court.”

Although Article III of the U.S. Constitution established the judicial branch, it left the number of justices to be determined legislatively. Initially, the Supreme Court had six members. That number varied over the years, going as high as 10 in 1863 before settling at nine in 1869. Increasing that number became the nub of Roosevelt’s plan.

On Feb. 5, 1937, he unveiled his new proposal. For every federal judge over the age of 70 who declined to retire, the president would be authorized to appoint an additional justice, to a maximum of six extra for the Supreme Court and 44 more for the lower federal bench. Six of the Supreme Court justices – including four Republican appointees – were 70 or older.

Roosevelt and Cummings kept their plan close to the vest before springing it on Congress. Most likely, they believed that the overwhelming Democratic majorities guaranteed its swift passage. They were wrong.

Rather than gaining quick approval, the plan turned out to be extremely controversial, even among Democrats. Roosevelt’s vice-president, John Nance Garner, refused to support it.

To sell the legislation, Roosevelt framed it as a means of dealing with overburdened court dockets. Younger blood would be injected where declining “mental or physical vigour leads men to avoid an examination of complicated and changed conditions.”

His critics saw it differently. To them, it was a naked attempt to undermine and circumvent the independent judiciary. And on July 22, 1937, less than six months after the bill’s introduction, the Democratic Senate killed it.

But if Roosevelt appeared to lose the battle, it’s fair to say he won the war.

On March 29, 1937, a 5-4 Supreme Court decision upheld a New Deal-inspired Washington state minimum wage law, notwithstanding the fact that a similar New York statute had been invalidated the previous year. And over the following weeks, several controversial New Deal laws, including the Social Security Act, were deemed to pass constitutional muster.

So was the court intimidated by Roosevelt’s proposal?

Those who answer negatively note that the critical swing vote in the Washington case was actually cast two months before Roosevelt’s announcement. It’s just that the decision wasn’t released until afterwards.

Still, it’s hard not to credit the peasant shrewdness of humourist Finley Peter Dunne’s fictional Irish immigrant, Mr. Dooley. In Dooley’s sagely cynical 1901 formulation, “the Supreme Court follows the election returns.”

Pat Murphy casts a history buff’s eye at the goings-on in our world. Never cynical – well perhaps a little bit.

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