What Obama can learn from Roosevelt's Supreme Court
American President Franklin D. Roosevelt at his desk in the White House, Washington DC, early 1930s. (Getty Images)
April 4th, 2012
09:52 AM ET

What Obama can learn from Roosevelt's Supreme Court

Editor’s Note: This is an edited version of an article from the ‘Oxford Analytica Daily Brief’. Oxford Analytica is a global analysis and advisory firm that draws on a worldwide network of experts to advise its clients on their strategy and performance.

Compared with the judiciary in any other advanced democracy, the nine members of the U.S. Supreme Court are uniquely influential in the country’s politics. With a ruling expected in June on the constitutionality of President Obama’s landmark healthcare legislation, some parallels can be drawn between this Court and the Court under President Franklin Delano Roosevelt.

In the extremely difficult economic circumstances of the 1930s, Roosevelt launched innovative and unprecedented ‘New Deal’ schemes to help stimulate economic growth and job creation. After initially upholding some new laws that expanded federal involvement in economic activity, the Supreme Court turned dramatically against the Roosevelt agenda in May 1935. It unanimously struck down his signature legislation on industrial recovery and agriculture as unconstitutional extensions of federal power not justified by the extraordinary economic conditions facing the country.

The Roosevelt Administration responded by initiating the most significant effort in U.S. history to change the Court’s composition. Once re-elected with a landslide majority in 1936, Roosevelt introduced legislation in 1937 to expand the number of justices. This ‘court packing’ plan never garnered sufficient congressional support, but did convince the justices to take a less confrontational stance towards other New Deal legislation.  Several justices opted to retire - an unusual move in what is an appointment for life.

The court packing plan marked a key moment in the inherent tension between the executive (with its legitimacy rooted in its electoral mandate), and the judiciary (charged to scrutinize what laws the U.S. Constitution gives Congress the authority to make). No Supreme Court in decades since has rejected an act of Congress as substantial as the Obama Administration’s Patient Protection and Affordable Care Act (ACA).  Whatever it decides, the current Court may be on the brink of a decision as momentous as those of the mid-1930s.

The Roosevelt experience highlights how significant the ideological leanings of individual Supreme Court members can be to decision-making. Republican presidents in the 1920s had appointed conservative justices generally holding a narrow view of federal regulatory powers. Likewise, the Court that will rule on Obama’s legislation has a particular ideological leaning.

A series of appointments during the eight-year George W. Bush presidency strengthened the Court's conservative group. In particular, the conservative Samuel Alito replaced moderate justice Sandra Day O'Connor. The Court now has five justices that take consistently conservative judicial stands who are Republican nominees, while the four more liberal justices were all chosen by Democrat presidents.

Whether the Obama healthcare legislation is upheld or rejected, there will be significant political fallout. The consolation prize for the ‘losing’ side is that it would be more likely to see its supporters energized in response to the ruling, meaning higher voter turnout in November's elections:

Upholding the healthcare legislation might be politically beneficial to Republicans, who could gain from a possible higher voting turnout among conservatives.

Overturning the legislation would not necessarily hurt Obama politically. Liberal outrage over its rejection might aid him. However, even an energized Democratic Party base is incapable of delivering Obama a landslide of the sort Roosevelt achieved in 1936.  There is almost no prospect of any similar post-election executive effort to intimidate the Court.

The expected decision on the law's constitutionality will ensure that health care (and through it, ideological issues on the overall role of government in society) remains a major issue in the November election.

For samples of the Oxford Analytica Daily Brief, click here.

Topics: History • Law

soundoff (7 Responses)
  1. ..................shiazim is evil liers

    syrian thugs will not give up the killing of cevilians, syria are sending 50 trucks a day to south leabnon hizboallah full with arms, weapons, chemical weapons, rockets and cash daily for the last month while USA, UK, FRANCE, NATO AND UN SLEEPING ...syria preparing to arm hizboallah and transfer the war to lebanon those evil my face their match and must be destroyed along with evil iran and the iraqi shiia thug stupid govrnment, unelected irawi shiia are sending weapons and cash to syria to hel the shiia killers to kill more....evil helping evil

    April 4, 2012 at 10:09 am | Reply
  2. George Patton

    Had it not been for the right-wing judges in the Supreme Court in the 1930's with their striking down the N.R.A., for instance, our economy would most probably have recovered much sooner, but the conservative fanatics didn't see things that way. All the Republicans did was to call FDR's New Deal "creeping socialism" but then again, they were not greatly affected by the Depression as most others were!!!

    April 4, 2012 at 3:47 pm | Reply
    • Joseph McCarthy

      Well stated, George. How the Republicans have changed from Abraham Lincoln's time. Ironically, Abraham Lincoln himself was a flaming liberal who not only wanted to abolish slavery but also child labor, illiteracy, low wages, bad working conditions, etc. and he founded the GOP! By the 1930's just like today, the Republicans were for the opposite of what Lincoln stood for and couldn't care less about the average worker!

      April 4, 2012 at 7:22 pm | Reply
  3. j. von hettlingen

    The court actually should appoint an amicus to argue the healthcare law cannot yet be challenged. If the court rules the law may not be challenged yet, it would allow the justices to avoid wading into a divisive and caustic political debate in a presidential election year.

    April 4, 2012 at 5:28 pm | Reply
    • AJAX

      A bit late for that, I think. Besides, I would think the supreme court would be insulted that they have to change their schedule because of politics.

      April 5, 2012 at 8:54 pm | Reply

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