Litigation

Another Echo of FDR Era?

By Charlie Hall

Will President Obama face the same kind of standoff with a conservative federal report that frustrated Franklin Delano Roosevelt in the 1930s? That provocative question is posed by Newsweek writer Michael Waldman in his article, “A Brewing Court Battle.” Waldman writes:

Here’s the core constitutional fact: a progressive president and Congress now face a conservative judiciary, for the first time since 1937. Obama’s ambitious agenda, if enacted, must go before federal courts?where judges can rewrite or strike down key provisions. From the TARP bank bailout, to climate change “cap and trade,” to health-care reform, new laws could face an array of judicial doctrines recently honed by conservative lawyers.

It was exactly such a standoff, with a conservative court striking down portions of his New Deal program, that led FDR to propose “packing the court” with as many as six additional justices of his choosing.  Although the unpopular proposal is remembered as a blemish on Roosevelt’s legacy, Waldman notes that it did appear to shift the 1930s Supreme Court.

As Waldman wrote: “When the court abruptly started to uphold FDR’s laws, wags dubbed it ‘the switch in time that saved nine.’ “ 

To see the full Newsweek article, click here.

Full post as published by The Gavel on March 17, 2009 (boomark / email).