Perhaps the most controversial political battle involving judicial activism occurred in 1937. Democrat Franklin D. Roosevelt (FDR) had been reelected president in 1936, and his administration was attempting to deal with the crisis of the Great Depression. The Roosevelt administration and Congress passed a number of programs—called the New Deal—designed to provide the country with jobs and relief. The legislation gave the federal government wide authority to institute these initiatives.
The nine-member Supreme Court, however, in a series of five-to-four decisions, invalidated much New Deal legislation. The majority argued that Congress had ceded too much legislative power to government agencies.
According to Jeffrey Toobin in a May 24, 2010, article in the New Yorker, Roosevelt's response was to propose "a change in the structure of the Court: henceforth, the President would name an additional Justice for each one over the age of seventy. The justification was that the new appointees would assist their elderly colleagues with their work, but, as everyone knew, the real motive was to put enough F.D.R. appointees on the Court to allow the New Deal to proceed."
At first, Roosevelt's plan seemed likely to succeed. In the 1930s, as today, judicial activism tended to be unpopular. When judges overturned the will of elective representatives, the public usually sided overwhelmingly with the elected representatives. In a March 25, 2010, New York Times book review of Jeff Shesol's book Supreme Power: Franklin Roosevelt vs. the Supreme Court, Alan Brinkley notes, "One of Shesol's many important contributions to an understanding of this controversy is his powerful description of the extraordinary opprobrium the court confronted as it began to overturn New Deal measures in 1935. Indeed, it was the deep unpopularity of the court that helped embolden Roosevelt to challenge it in 1937."
Despite the court's unpopularity, and despite Roosevelt's majorities in Congress, the president's efforts to pack the court with additional justices proved unexpectedly controversial. Republicans, of course, were adamantly opposed to the plan. But even many Democrats opposed it, on the grounds that Roosevelt's actions were, in Brinkley's words, a display of "excessive presidential power and a threat to the Constitution." Opposition to the plan was so great that Roosevelt eventually had to abandon it. The setback "was one of the worst episodes of Roosevelt's presidential career" according to an online article on PBS.org. Roosevelt, the site continued, was "publicly humiliated and utterly defeated." The judicial activists, it seemed, had won.
Victory was not quite so clear-cut, however. Roosevelt had to abandon his plan and suffered political damage as a result. However, "in the end, Roosevelt got what he wanted," according to Christopher Malone in an article in Law and Politics Book Review. After Roosevelt applied pressure, some Supreme Court justices began to rule in his favor. Over time others retired and Roosevelt was able to pick their replacements. The court-packing plan died in large part because it became clear to everyone that FDR was going to get his way without it. And sure enough, the Supreme Court began to rule in Roosevelt's favor, declaring New Deal legislation constitutional. Malone concludes that just because the Supreme Court is "the least political branch does not mean that the Supreme Court is wholly divorced from politics." The justices "don't make decisions in a vacuum," Malone concludes, and "the power of judgment will always have political consequences."
The court-packing battle, then, was both a constitutional and a political struggle between the executive and judicial branches. Judicial activism did not prevail, but neither did Roosevelt's executive activism. Instead, the issue was resolved within the institutional framework of the Constitution. As Jeffrey Toobin notes, "Roosevelt lost the court-packing battle, but he won the legal war over the New Deal. By the end of his long tenure in the White House, he had made eight Supreme Court appointments, and that is what guaranteed that the federal government was able to address the economic crisis." Toobin suggests that the best way for presidents to confront judicial activism, therefore, is to win reelection. By doing so, they will gain the opportunity to appoint more justices.
The chapters in this book raise additional questions about judicial activism, including Is Judicial Activism Harmful? How Has Judicial Activism Affected Particular Issues? What Is the Relationship Between Public Opinion and Judicial Activism? and Is Judicial Activism an Issue in Other Countries? The differing viewpoints show that the controversy surrounding judicial activism and the balance between the judicial, executive, and legislative branches continues to be an important issue more than seventy years after FDR's court-packing plan.