Between March and July 1933, FDR’s policy of devaluing the dollar pushed industrial production up by an incredible 57% in just 4 months. Then FDR’s National Recovery Administration instituted a policy of mandating sharply higher wages. Hourly wage rates rose by roughly 20% in just two months. This immediately ended the robust economic recovery then underway.
When the Supreme Court ruled the NIRA to be unconstitutional in May 1935, there had been no growth in industrial production for 22 months. Immediately after the NIRA was declared unconstitutional, industrial production once again took off like a rocket, until this second recovery was derailed by tight money and another wage shock in 1937.
You’d think that FDR would have thanked the Supreme Court for rejecting the disastrous NIRA and triggering a surge in the economy—a boom that allowed FDR to win a huge victory in November 1936. In fact, Roosevelt was so frustrated by the Supreme Court that he tried to enlarge the court at the beginning of his second term. The goal was to add a number of FDR loyalists to the court, effectively reducing America’s political system from three branches to two. You occasionally see similar moves in the modern world, but mostly in authoritarian regimes. BTW, FDR was a fan of Mussolini.
In the 1937, the US still had pretty strong resistance to authoritarianism. Even though the Democrats held an overwhelming 74-17 margin over the GOP in the Senate, there was so much outrage at FDR’s power grab that the proposal was eventually dropped. America narrowly avoided becoming an authoritarian state. The checks and balances put in the Constitution held up.
Today I’m seeing renewed calls for court packing. I suspect that if proponents of this scheme understood more about the 1937 attempt at court packing, as well as the effects of court packing in various banana republics, they would reject this idea.
PS. It’s important to distinguish between court packing and court enlargement. With legitimate court enlargement, as with the 22nd amendment to the Constitution limiting the president to two terms, the current occupant of the presidency is exempted. I don’t have strong views either way on legitimate proposals for court enlargement, but allowing the same president who signed a court enlargement bill to also engage in court packing would be a mistake of epic proportions. Checks and balances are an essential tool for preventing authoritarianism.
READER COMMENTS
nobody.really
Sep 22 2020 at 1:23pm
On process:
Agreed–and I absolutely oppose the idea that the executive should unilaterally be able to change the size of the Supreme Court, and unilaterally select the people to fill those seats. But if CONGRESS passes a bill to expand the court, and if the SENATE gives advice and consent on the nominees for those seats, then we’ve got all the checks and balances provided by the Constitution.
Now, if Sumner is suggesting that government should recognize restraints beyond those set forth in the Constitution, I agree as well–but the Republicans discarded those long ago.
Arguably we should amend the Constitution to prohibit certain kinds of tampering, such as altering the size of the court. And I wouldn’t be surprised if the Biden Administration proposed such a change–after having expanded the court and putting its own nominees on it. At that point, I somehow suspect that Republicans would resist such a Constitutional change.
Steve
Sep 22 2020 at 1:54pm
That’s the larger problem, as I see it. Nobody (D or R) has any respect or reverence for the rules and processes themselves. The only driving motive seems to be “whatever most benefits me and my party at the given moment.” I understand the urge, but frankly it’s really gross and such a short sighted human behavior.
Scott Sumner
Sep 22 2020 at 4:23pm
No constitution can prevent a slide to authoritarianism, as there are loopholes no matter how you write the rules. Nothing in the Constitution prevents Congress from impeaching the president and the entire Supreme Court tomorrow—then we have one branch. We need a polity that believes in the spirit of the Constitution, not one that looks to exploit loopholes.
nobody.really
Sep 22 2020 at 10:27pm
And you think Congress hasn’t impeached the president and the Supreme Court due to Congress’s embrace of the “spirit of the Constitution”?
It’s a thought. And doubtless the authors of the Federalist Papers exhorted people to be public-spirited. But they also recognized that such exhortations would be insufficient, and thus created multiple branches and houses of government, in the hope that each chamber would jealously guard its prerogatives against the other–and thereby defend the people against overreach.
And indeed, there was a time in the 1800s when Congress wielded more control that in now does, and foreign dignitaries would come to pay visits to Congressmen John C. Calhoun and Henry Clay, along with the president.
But recent events seem to reflect under-anticipated dynamics: First, we observe the rise of political parties (“factions”). Thus, the Republican-controlled Senate showed NO interest in evaluating the articles of impeachment against Trump–because Trump is a fellow Republican, and loyalty to party exceeds all other loyalty.
Second, we observe politicians running AGAINST their institutions–in effect, promoting their interest in re-election over loyalty to the institution. Today, incumbent politicians revel in telling their constituency how evil Washington is, and how you need to re-elect them to “drain the swamp.” Moreover, these politicians are more than happy to avoid taking control, because they can thereby avoid responsibility. Is the Patriot Act leading to abuse? Are deficits too high? Has the war in Afghanistan gone on too long? Congressmen tsk-tsk and shake their heads in disapproval–and then ask voters to re-elect them so that they can continue to oversee the situation.
In short, I suspect the “spirit of the Constitution”–while a romantic ideal–has little to do with why Congress hasn’t organized to seize all the power for itself.
Scott Sumner
Sep 23 2020 at 12:39pm
I strongly disagree. A strong civic culture (the spirit of the Constitution) is the only thing that keeps up from becoming another Venezuela. A piece of paper won’t stop a slide toward authoritarianism.
nobody.really
Sep 23 2020 at 5:37pm
I can see that argument. And I can see the argument that the benevolence of the butcher is the only thing that will keep us from starving.
Alternatively, I can see the argument that we need a system in which people pursuing their self-interest produce good social outcomes. This was the idea proposed John Adams, and by the drafters of the Federalist Papers. Under such a theory, we would need structural remedies, not mere exhortations to civic virtue, to fix our problems.
I share your enthusiasm for strong civic culture. But I question is sufficiency.
nobody.really
Sep 22 2020 at 2:18pm
On substance:
1: I suspect I share many of Sumner’s concerns with the substance of the National Recovery Administration.
2: Nevertheless, the bill passed Congress and was signed by the president. So which seems more “authoritarian” to you—the idea that people should be governed by law adopted and implemented by the democratically-selected branches of government, or that they should be governed by the decisions of nine unelected elites? I acknowledge that the Constitution (arguably) prescribes this arrangement; I merely question whether it makes sense to praise SCOTUS’s anti-majoritarian decision as a means to protect us from authoritarianism….
Moreover, note that SCOTUS stuck down the National Recovery Act largely on the grounds that it had incidental effects on intra-state commerce, which exceeded the scope of the Interstate Commerce clause. SCOTUS has since reversed this interpretation, concluding that the Interstate Commerce clause does not implicitly create a default assumption of libertarianism. (There’s a specific case I have in mind, but I can’t find it on the fly.)
You can agree or disagree with the Court’s current interpretation—and that’s the point: SCOTUS’s decisions reflect contested, and changing, points of view, not wisdom handed down from Valhalla. As a general proposition, we should expect courts to be a tool for elitist/minority causes more often than for majoritarian ones. That’s not a condemnation of courts; that’s what they do. But in general, we should be wary of expecting courts to defend us from authoritarianism.
As Judge Learned Hand wrote in his The Contribution of an Independent Judiciary to Civilization (1942), “this much I think I do know–that a society so riven that the spirit of moderation is gone, no court can save; that a society where that spirit flourishes, no court need save; that in a society which evades its responsibility by thrusting upon the courts the nurture of that spirit, that spirit in the end will perish.”
3: In any event, after SCOTUS’s decision the Roosevelt Administration (and Congress) re-codified much the National Recovery Act’s provisions in the National Labor Relations Act and the False Claims Act.
Airman Spry Shark
Sep 22 2020 at 2:59pm
That’s by design. Democracy is but tyranny of the majority without robust protection of minority rights, which the anti-democratic judiciary provides.
Jose Pablo
Sep 22 2020 at 4:16pm
So your point is, basically, that if the majority of residents in my village decide (and “democratically” vote in favor of) that I should pay por all the groceries they buy at the local supermarket, no court should defend my elitist minority claim to not pay for that.
Interesting way of defining “authoritarianism”.
Scott Sumner
Sep 22 2020 at 4:35pm
You are mixing up two separate issues. One issue is whether a particular issue was correctly decided. There are certainly cases where reasonable arguments can be made for both sides. The second issue is whether it is proper to respond to a decision you oppose by trying to pack the Supreme Court and thus effectively neuter one of our three branches of government. My claim is that this is not a proper response to being disappointed by one or more court decisions. Note that FDR also won many cases.
When a court strikes down a coercive law you can argue that overriding the Congress is authoritarian, but you can also argue that upholding a coercive law like the NIRA is authoritarian. Even some supporters of the NIRA viewed it as a quasi-fascist law.
nobody.really
Sep 22 2020 at 5:27pm
What does “pack the court” mean to you?
For the benefit of anyone who hasn’t been following this issue, in 1973 the Supreme Court issued a decision upholding a woman’s right to abort a pregnancy under certain circumstances. Republicans opposed that decision, and have been trying to influence the composition of federal courts ever since to overturn it. Thus, throughout the Obama Administration, the Republican Senate largely stonewalled and slow-walked the confirmation process to limit the power of Democrats to appoint judges. And when Scalia died, they expressly stonewalled the appointment of Merrick Garland, refusing to even grant him a hearing, thereby preserving an empty seat on the Court for a Republican to fill. And in contrast, now that analogous circumstances have arisen with the death of Ginsberg, Republicans are proposing to rush through a confirmation.
Given the facts, would you say the Republicans have effectively “neutered one of our three branches of government”? Would you say that their conduct has been “proper”? And if you don’t find it proper, what remedy would you propose?
Jose Pablo
Sep 22 2020 at 6:12pm
In the politicians crave for power there is no significant differences between Democrats and Republicans. No politician without this “instict” will survive the political arena (Hayek was right: “the worst get on top”).
In the “issue” you describe there is some information missing: The Republicans controlled the Senate at the time of Garland’s nomination. The Democrats don’t control the Senate now. If they do, I have very little doubt that any supreme court appointment will be blocked.
Every party block supreme court appointments whenever they (1) can do it legally and (2) are ready to pay the political price (if any). And only don’t do it when they cannot do it.
They can or cannot depending on their control of the Presidency and the Senate. This control is granted by the People. I will be very surprised by any of the parties showing any form of self-restrain in using this power.
Scott Sumner
Sep 22 2020 at 7:21pm
I don’t agree with the GOP’s behavior, which has not been as principled as I would like. But I would not call this “packing” the court. Indeed, note that they failed to overturn Roe v. Wade. With true court packing you essentially make the Supreme Court an arm of the executive branch, by filling the court with loyalists to the president.
For instance, if the court were expanded to 21, and if the president immediately picked 12 new members, then the president would be able to effectively control the judicial process. While there are things to criticize with the GOP, they have not done anything close to court packing.
nobody.really
Sep 22 2020 at 10:02pm
Great. So if we add 12 additional seats on the Supreme Court, and the executive branch merely picks leaned jurists, not “loyalists to the president,” then there’s nothing to worry about.
Which illustrates the weakness of this analysis. EVERY president picks people who they think will reflect their own view. And every president is wrong, so some extent. The reason that Republican presidents have not overturned Roe v. Wade is not for lack of trying.
So pretending that the world of judges is divided between “loyalists” and “learned jurists” is silly. But if you didn’t believe that Republicans’ perceived that they had an interest in controlling the judiciary, what interest would they have in behaving in an unprincipled manner?
In short, Republicans have exploited their political power in an effort to control the judiciary. I see little reason the Democrats would not do likewise. Yes, I dislike political parties treating the court like a political football–but given the current realities, what is the alternative?
Scott Sumner
Sep 23 2020 at 12:43pm
I don’t think you understand the importance of quantitative distinctions. Both Switzerland and Venezuela have some corruption, but they are very different places. The fact that presidents already have some ability to shape the court in no way means that outright court packing would just be more of the same.
Don’t try to reduce political science to a exercise in logic–there’s much more involved.
nobody.really
Sep 23 2020 at 4:56pm
You acknowledge that the Republicans have employed unprincipled tactics in shaping the judicial branch. I ask you what remedy you suggest. And your answer is…?
MarkW
Sep 23 2020 at 6:11pm
Which illustrates the weakness of this analysis. EVERY president picks people who they think will reflect their own view
They do now — but they didn’t used to worry about it so much. Before Roe, control of the Supreme Court was not a death match. Nominating and confirming judges was pretty routine and collegial. Fierce party-line confirmation votes are the historical anomaly.
That’s why I’d like to see Roe overturned and abortion laws returned to the states. I’m not religious or a conservative, and don’t want to ban abortion, but I care about fixing this broken system and the terrible Roe decision is what sent us down the path to where we find ourselves now.
Michael Sandifer
Sep 22 2020 at 2:53pm
Scott,
What incentive does McConnell ever have to negotiate a way out of this situation with court nominees of the Democrats don’t render his unprecedented actions futile? By packing the court, the Democrats will have made the court more fully partisan, which could at least lead to stalemate.
Yes, this is banana republican-style government, but this is where we are. Democrats have to learn to fight. Right now, Democrats are like the parent who cares about the children and hence the abusive parent, the Republicans, can extort the Democrats by threatening to harm the rest of the family.
Scott Sumner
Sep 22 2020 at 4:25pm
This post is not about “who is to blame”. I put blame on both parties. This is about how to avoid a slide into authoritarianism.
Michael Sandifer
Sep 22 2020 at 4:45pm
My comments aren’t about who to blame either, but rather about the need for Democrats to stand up to Republicans, neutralizing their unfair behavior. It’s about setting the table for reform. Again, what incentive do Republicans have to respect the legitimacy of democracy, and Democratic office holders if Democrats don’t get tough?
Mark Z
Sep 22 2020 at 5:37pm
It’s a fiction that Democrats haven’t “gotten tough.” They “got tough” with Robert Bork, with stopping George HW Bush’s late term appointments, with Harry Reid’s ‘nuclear option.’ It’s amazing that some people have managed to convince themselves that the judiciary wars of that last few decades are all on one side.
I think you’re right that at least requiring the Senate to vote on appointments in a certain timeframe is necessary (otherwise I could see it getting to the point where whole presidential terms go by without a vacancy being filled), but packing the Supreme Court wouldn’t lead to a stalemate. It’d make the Supreme Court a rubber stamp for whoever is in power, basically neutering one of the three branches and pushing us closer to dictatorship. If you think it’s worth the cost of making presidents you’d hate more like dictators to also make presidents you’d like more like dictators, I guess it makes sense, but otherwise it doesn’t.
Michael Sandifer
Sep 22 2020 at 11:40pm
Mark Z,
What amazes me is that anyone would bring up Bork at all. There were excellent arguments for not confirming Bork, and a vote was held. Democrats rejected Bork. Republicans would not even allow for consideration of an Obama nomineee, and it was unprecedented. And now, despite claiming to have acted on principle at the time, they are shamelessly, openly hypocritical.
If you want to talk about the unfair rejection of Supreme Court nominees decades ago, we may as well discuss LBJ’s nominee Abe Fortas, who was not rejected for political reasons, allowing Nixon to fill the seat instead of LBJ. That was the era in which Supreme Court nominations began to become politicized, it that politiization was driven mostly by racists among southern Democrats and Republicans.
Michael Sandifer
Sep 22 2020 at 11:43pm
Mark Z,
You misunderstand my point about “stalemate”. If Presidents begin regularly packing the Supreme Court, the stalemate will be between the two parties, as neither will be able to gain a durable advantage in filling Supreme Court seats. It will then make more sense to strike some kind of deal, with some equitable rules.
Mark Z
Sep 23 2020 at 3:00am
That doesn’t really refute my point that Democrats have, in fact, escalated the politicization of the Supreme Court as well when it was politically expedient to do so. Yes, Mitch McConnell is being hypocrite (though I think he is correct now and was wrong four years ago). If Democrats do pack the courts if they win the presidency and the senate, though, it will be a greater deviation from established norms than anything McConnell has ever done.
And if presidents can gain immediate control over the Supreme Court, why would they be willing to sacrifice that for a deal that stabilizes the court in the long run? That doesn’t seem consistent with how presidents have behaved for at least a few generations, which is to try to increase their power today, even at the expense of their party in the future. Presidents will likely be just fine with having a rubber stamp supreme court for 4 or 8 years even if their party suffers for it once they’re out of office.
Michael Sandifer
Sep 23 2020 at 9:39am
Mark Z,
You brought up the past, so if you’re going to bring up the past, go all the way back to when Republicans started to politicize the process of confirming judges, because they began to ally with southern Democratic racists who opposed the civil rights acts and some actions of the Warren court. Then, came Roe verus Wade, a ruling which is hardly a problem for any, but religious fundamentalists.
The past, however, is irrelevant now. I care about the Senators who are members of a now openly fascist party obviously trying to steal an election. The Democracts better get tough, or they’ll find we don’t have a republic anymore.
As far as Presidents having control over the Supreme Court in the case of court packing, the Senate would still have to confirm candidates, so Presidents would not have control of the process. Senators from both parties would have the power and would have incentives to cut a deal to end a crazy system that has the Supreme Court increasing in seats everytime there’s a vacancy.
anonymous
Sep 23 2020 at 2:36pm
“Then, came Roe versus Wade, a ruling which is hardly a problem for any, but religious fundamentalists.”
This is not accurate at all. In fact, the consensus is closer to it being an awful, lawless decision. Of course somewhat obscured by the highly partisan legal academia
nobody.really
Sep 23 2020 at 5:16pm
1: It is unclear to me that Senators have much incentive to compromise–on anything. We live in an increasingly polarized political environment. Voters (or, at least, the lobbyists who motivate voters) demand loyalty to the tribe over actual achievements. This is especially true in Republican circles. Very few moderate Republicans retain their seats–and I expect fewer will remain after the next election. Thus, for most current politicians, they only thing they need to fear is a primary challenge from someone who is more doctrinaire than themselves. In this context, compromise is the kiss of death.
2: It is unclear to me what this dynamic will mean for the Supreme Court. It’s possible that Trump has so damaged the GOP brand with America’s increasingly diverse and educated population that Republicans will find it hard to win the presidency. But they may be able to win the Senate, because it’s dominated by rural states. In that case, we may see a game of Survivor, with the Senate simply refusing to permit ANY Democratic nominee to join ANY federal court. Instead of seeing a growing judiciary, we’ll see a shrinking one.
This pattern would be punctuated by the rare occasions that Democrats DID manage to win the Senate, or Republican manage to win the White House–and suddenly the taps would be opened. Hard to predict how this would play out in the long run; it’s not clear that this game iterates to a stable solution.
Michael Sandifer
Sep 23 2020 at 9:21pm
anonymous,
Where’s the evidence for your claim?
robc
Sep 22 2020 at 6:58pm
McConnell has no reason to negotiate since Harry Reid ended the filibuster rule for nominations.
With it in place, McConnell wouldnt be able to force a vote before the election.
I think that is the textbook example of hoist with his own petard.
Thomas Sewell
Sep 24 2020 at 5:59am
Don’t fall for the hype. There have been 15 USSC nominees who didn’t get a confirmation vote in the Senate, whose nomination died without a vote when the Senate session ended. That’s four more than the 11 who were rejected by a confirmation vote and four more than the 11 who were withdrawn by the President after nominating them.
So it’s not exactly unprecedented. The Senate simply followed Senate Rule XXXI and referred the nomination to committee, but the nomination didn’t have enough votes to even schedule a hearing by the committee. The constitution explicitly grants the Senate the power to set it’s own rules on how to do things, so everything was accomplished according to the constitution and the Senate rules.
Alan Goldhammer
Sep 22 2020 at 2:53pm
If Congress would do its job with care in crafting legislation, the role of the court(s) becomes a non-factor. Congress enabled the administrative state by not doing its job.
Michael Sandifer
Sep 22 2020 at 3:12pm
By the way, I agree that FDR was out of line to try to pack the Court, but those circumstances were very different. McConnell and most of the rest of the Republicans have zero concern about the Constitution, rule of law, or truth itself. They only practice realpolitik and only care about themselves. They are already showing every indication of trying to cheat to steal the next election.
And, it is perhaps best to draw such a stalemate in an era of hyperpartisanship, unless and until lasting reform can be had. That means, at least a deal that all of every President’s nominees for courts be allowed votes, at the least. Sitting on nominations should not be allowed. Perhaps a Constitutional amendment is required.
Our system of government is very flawed. It was only a matter of time before some amoral President took advantage of it. We should ultimately seek to reign in the power of the Executive, including eliminating pardoning power, the power to unilaterally set tariffs, to interfere in private business decisions, and we should elminate all immunity from criminal prosecution while in office, as a start. Also, the Justice Department should probably become an independent branch of government, with the Attorney General chosen by the leader of the party that gains the second most votes in a Presidential election.
Ray
Sep 22 2020 at 3:55pm
Appointing a justice to the Supreme Court requires one of three things: (1) a vacancy (2) a nominee (3) the advice and consent of the Senate.
By electing Donald Trump in 2016 and retaining the (R)’s in control of the Senate two years later, voters signaled their preferences for how #2 & #3 are handled. To ignore that simply because of a proximity to the election and some media-driven definition of hypocrisy would be a rejection of those signals.
The signals voters sent after the Kennedy retirement were quite different. It’s counter to historical norms for a split-government approval of a SCOTUS nominee in an election year. That’s different than not permitted of course, but evidence that for McConnell and co. to have approved Garland would have been an outlier, as would not considering a replacement for RBG.
You’ll have to enlighten us as to how any of this adds up to having “zero concern” for the constitution. It’s politics as part of what was built as a political process. There may be a political price to pay for decisions made, as there could be for an attempt at court-packing by a prospective Biden administration.
Michael Sandifer
Sep 23 2020 at 9:25pm
Ray,
Sorry, but your comments strike me as completely nonsensical.
And why do I say that Republicans don’t care about the Constitution? Because, they let Trump violate it with regularity, and many of them openly flout the law and Constitution.
Scott Sumner
Sep 22 2020 at 4:28pm
Michael, You said:
“Our system of government is very flawed.”
In my view, our current problem is our culture, not the system. We increasingly resemble the culture of a banana republic.
Manfred
Sep 22 2020 at 4:57pm
Says Scott Sumner:
“We increasingly resemble the culture of a banana republic.”
By sheer coincidence, last Sunday, a good friend of mine in Buenos Aires (Argentina), after telling him about the Democrats’ reaction to RBG’s passing and the whole thing, he said:
“De alguna manera se va confirmando mi teoría de que algunos países del primer mundo se van argentinizando de a poco.”
[Translation: Somehow I am getting confirmation of my theory that some countries of the First World are slowly becoming like Argentina.]
[The back story is that in Argentina there is a very hot court-packing issue as well – the former president (now vice-president) Christina Kirchner wants to pack the Supreme Court in Argentina with supporters of hers, so that she will not be prosecuted for corruption…]
Scott Sumner
Sep 22 2020 at 7:24pm
Yes, that’s exactly what I fear.
Michael Sandifer
Sep 22 2020 at 11:13pm
Scott,
You’re correct about the culture. A constitution is only as good as the people willing to uphold it. That said, some constitutions are better designed than others, and obvious flaws should be eliminated.
Another change we need, for example, is to add a runoff election in the case in which one candidate doesn’t earn a majority of votes. Also, we should get rid of the electoral college.
What about super judicial review, such that when laws don’t achieve their intended goals, as stated in the law, or determined by the courts, they are struck down when challenged?
There are lots of ways to improve the functioning of our government and make it more difficult for authoritarianism to take hold.
Jose Pablo
Sep 22 2020 at 5:44pm
If you think the American system of government is very flawed, take a look at the rest of the world.
In any case, there is no such a thing as an “amoral-president-proof system of government”. Every single government tends, by their very own nature, to concentrate and abuse power (see Anthony De Jasay on that).
The whole American system of government was designed to avoid “excess legislation” and to limit the bureaucracy (that’s the reason behind the bicameral Congress, the direct election of the President, the President veto power, etc..). After all, the concentration and abuse of power take place thru legislation enhancement and enforcement (NIRA as an example).
If you look at the amount of legislation and regulation that has been enacted by Congress and the President since 1789 you can only rightly concluded that the effort of the Founding Fathers to avoid precisely that, has failed miserably.
Reagan was right in 1967: “Freedom is a fragile thing and is never more than one generation away from extinction. It is not ours by inheritance; it must be fought for and defended constantly by each generation”. And you are right, we are losing this battle.
Actually, our defeat is long overdue, the individuals never stood a chance against The State in this fight.
Michael Sandifer
Sep 23 2020 at 9:28pm
Jose Pablo,
How relatively good the US Constitution is versus other constitutions is irrelevant. The important point is how many gaping holes it has in terms of protection against abuse of power, for example, by the President and members of Congress. We don’t have to give Presidents the power to pardon people for federal crimes, for example.
Jose Pablo
Sep 24 2020 at 3:29pm
Yes and no, Michael.
Yes, the wording of the Constitution is irrelevant. There are Constitutions far better worded than the American one.
And, no, the “design of the system” as a whole and in particular the “effective division of power” between the different branches of the government is a key element to prevent the concentration and abuse of power (a natural and strong tendency of any kind of government).
And yes, there is no design good enough to withstand the passage of time, not even the American one. Slowly by surely, the natural tendency of any government to grab more power will erode the protections of the original design, and, at some point a tyrant would be bold enough, clever enough or opportunistic enough (to be in the right place at the right time will be key) to deliver the final blow.
As Scott mentioned, having the right political “culture”(whatever it means) sure helps. But it is naive to think it will prevent the final fall (although we should appreciate any effort denouncing the most flagrant authoritarian attempts).
A very interesting speech of Scalia on this very same topic.
https://www.youtube.com/watch?v=Ggz_gd–UO0
Illustrates, by the way, the failure of the Founding Fathers in trying to prevent the “excess of legislation”
Mark Z
Sep 22 2020 at 5:26pm
Scott, one thing that puzzles me about FDR and the Supreme Court, and was wondering if you understood it better than me. Nothing about ruling the NIRA unconstitutional prevented FDR from running large budget deficits, right? It just interfered with his ability to regulate prices and exert control over industries I thought. So why do many Keynesians, including Paul Krugman, still argue that the Supreme Court sabotaged the New Deal? Did the ruling actually impede fiscal stimulus at all?
Scott Sumner
Sep 22 2020 at 7:27pm
AFAIK, there were no Supreme Court rulings that in any way inhibited monetary or fiscal stimulus But I cannot be certain, as I’m not an expert on the Court.
stoneybatter
Sep 22 2020 at 5:45pm
Scott, there have been frequent proposals from Democratic leaders to expand the court if Biden wins election. I share your concerns. Do you think there is a legitimate way to do it? E.g. if they announced a plan to expand the court by two justices, with one to take effect in 2021 and one in 2025 pending the outcome of the next presidential election, would that be enough?
Scott Sumner
Sep 22 2020 at 7:32pm
That would certainly be far more reasonable.
BTW, I actually don’t see the need for a bigger court. Is it a workload issue?
Another possibility is fixed 18 year terms and let each president pick two justices each term on a consistent schedule–one every 2 years. Perhaps have a rule that the Senate must decide one way or another within a month, or they automatically go through.
If someone dies part way through the term, the replacement can only fill out the rest of the term.
Michael Sandifer
Sep 23 2020 at 1:34am
Scott,
Yes, some approach like this should be negotiated. By packing the Court, Democrats can render Republican attempts to stack the court in their favor moot and give them incentives to deal.
Mark Z
Sep 23 2020 at 3:10am
A larger court would have the advantage of smoothing the rate of retirements and appointments and making each appointment less important. It wouldn’t be such a big gamble, where a some presidents don’t appoint any, some reappoint a third of the court. One way this could be done that everyone might find acceptable would be to have the senate do ranked list voting, and the top n candidates get appointed. That way the losing party (assuming they still have almost 50% of seats) could still pick almost half the new justices.
robc
Sep 23 2020 at 1:54pm
I suggested the 18 year plan on another site just recently. It fixes a lot of problems. The new terms should also start in odd years, so not an election year. Each odd spring, the President would nominate with the Senate having until October (when the new term starts) to approve. Obviously, the President could nominate whenever, but that seems about the right time to do it.
I think another advantage is that with 18 year terms, there is no bias toward a younger judge, with the hopes of getting 30 years out of them. You wouldn’t want to go too old with the 18 year term, but you can be pretty reasonable.
Lizard Man
Sep 22 2020 at 9:59pm
Could the US states manage a peaceful partition of the nation? That might preserve freedom for the peoples currently living in the US.
Mark Z
Sep 23 2020 at 3:16am
I think it should be considered. Not right now, but as an eventual solution assuming things keep going the way they’re going. Peaceful dissolution and perhaps the establishment of an ‘American Union’ (ideally fewer regulations though than the EU) to ensure free trade and travel may be desirable.
Scott Sumner
Sep 23 2020 at 12:47pm
I did a post on “The American Union”, proposing an EU-like structure for the US. It didn’t hold up well once the euro crisis began, but it’s still an interesting idea.
https://www.themoneyillusion.com/the-american-union-or-how-a-right-winger-learned-to-stop-worrying-and-love-the-eu/
Mark Z
Sep 24 2020 at 12:15am
Oh, nice, I’d never seen that post before, a good summary of the perks of an AU. With a common currency of course hammering down the issue of monetary policy for the ACB (or would we still call it the Fed) may be a key precondition, so I guess we’re not quite there yet.
Jose Pablo
Sep 25 2020 at 11:07am
It is kind of “ironic” the Americans wanting to have an “EU like” model, while the Europeans want to increase the ability to tax and spent at the Union level, resembling more the American Federal System (although not saying so in public, since America is a “capitalist dystopia” to many Europeans).
“The grass of the other side” kind of situation?
bill
Sep 23 2020 at 1:47pm
In the past, you’ve written about good judges. That a good judge shouldn’t be a conservative judge or a liberal judge, but one that is effective at evaluating the law and judging accordingly. Now we have one judge (Garland) who didn’t get his hearing, and a second judge where quite a few Senators have already announced their votes before she/he has even been named. Now, look at the Senate. The Senate is part of the rules. None of us ever voted for those rules. We inherited them – for better and for worse. The Rs in the Senate were elected with about 6% less of the vote than the Ds. ie, if two Ds come from California and they won their elections by X million, and two Rs come from Wyoming etc. Accordingly, the Senate is not the “will of the people”, it’s the will of some combination of people, land, history. Changing the Constitution is really difficult. The last meaningful amendment (the 24th) passed 56 years ago (and look at how the state of Florida is flouting that one). The rights of minorities do need protecting. We should all have free speech and the other freedoms regardless of who won the last election. I hope we can stop this slide into banana republicanism too. But I find it depressingly less likely when the system keeps awarding more power to representatives that won fewer votes. I’d prefer to see a more moderate Republican party win control through real majorities (ie, not just due to an electoral college advantage for the Presidency and small state bias of the Senate). It would be better for them, better for me, and better for all of us.
Dale Doback
Sep 23 2020 at 2:19pm
I don’t think the solution to banana republicanism is adherence to vague unwritten principles like no process change should affect the sitting president. We are going to need actual compromise amendments that make these things explicit – e.g. a supreme court size amendment to keep the Democrats in check, a balanced budget amendment to keep the Republicans in check, etc. Successful constitutional democracies, like Switzerland and much of western Europe, have some form of these things already which is why these issues don’t even get brought up. We are running an old and exploitable version of a democracy operating system. We need some basic software updates to modernize.
robc
Sep 24 2020 at 11:47am
The funny thing is that while that is absolutely true, it is the GOP that is more likely to favor the amendment. Maybe because they recognize their own inability to stick to it.
robc
Sep 24 2020 at 11:50am
We have an update system in place. I would say it doesn’t get used enough, but many of the updates have made things worse (16, 17, and 18 being by far the worst).
robc
Sep 24 2020 at 11:53am
Following up, 16 , 17 , and 18 are the only bad ones, along with parts of 14 and parts of 21. The rest may have some wording issues, but are mostly good.
Craig
Oct 8 2020 at 8:31pm
Historically as the US was growing, fixing the number of justices did not make sense since the justices then actually worked. They physically rode circuit, so each circuit really did need a justice.
At this juncture to pack the court for political purposes is a constitutional armageddon. Biden and Harris are both being coy about it so at this juncture it must be assumed that they both intend to pack the court. In essence for denying Garland a hearing the Democrats will obliterate separation of powers and the legitimacy of the Judiciary forever.
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