Mark Calabria

Although Franklin Roosevelt did go on to win another term after his court-packing debacle in 1937, his support dramatically declined after the incident.  Whereas his 1936 election came with the support of 62% of voters, his 1940 was down to 55% (granted, still a “landslide by modern standards).  And while it wouldn’t be until 1946 that Republicans would take the Senate, the 1938 mid-terms did cost the Democrats five Senate seats.  The point of all this?  Constitutional overreach comes at a cost, and in a nation split roughly evenly on Red/Blue ideological lines, that cost could make all the difference.

While it is still too early to tell, President Obama’s recent “recess” appointments have the potential to erode his support among independents, many of whom actually care about the Constitution.  While the National Journal‘s Shane Goldmacher is pondering why Republicans even want to take on this fight, it really should be the White House questioning whether it is worth it.  When Ron Paul says, “The president is not a dictator or a king who can simply ignore the Constitution whenever he feels frustrated by the system of checks and balances,” this is something that anyone can understand, even former law professors.

A few things to remember about FDR’s court-packing scheme.  First, unlike Obama’s recent appointments, FDR’s plot was actually constitutional, but still struck at the checks and balances behind the Constitution.  FDR also painted his plan as a way to rein in an out-of-touch, conservative Court that, in his view, protected “big business” (sounds a little familiar).  Despite FDR’s massive popularity at the time, and the unpopularity of both Republicans and the Court, the plan still cost him.

It is also worth remembering that court-packing initially had some support.  From its announcement in February until about April, Gallup showed a steady support of around 45%.  In fact, support never fell below 30% before the plan was shelved.  Goes to show no matter how offensive, there will also be some blind partisans to support any scheme.


Mark Calabria

Mark A. Calabria, is director of financial regulation studies at the Cato Institute.