The Citizens United campaign finance decision by the Court's conservative judicial activists is a dramatic assault on American democracy and a real threat to the prospects of an Obama reform presidency.
Tensions between the Court and the Administration rose even higher last week, when Chief Justice John Roberts criticized President Obama for expressing his disagreement with the Citizens United decision during the State of the Union address. Roberts called Obama's comments "very troubling."
"What is troubling is that this decision opened the floodgates for corporations and special interests to pour money into elections--drowning out the voices of average Americans," White House press secretary Robert Gibbs shot back.
And when those voices are drowned out, the ability to move economic, political, and social reform legislation becomes even more difficult, especially in the face of already too powerful corporate lobbies that keep campaign coffers flush with cash.
The Court and the Administration's fundamentally different visions for the country are reminiscent--though far less dramatic at this stage--of the conflict between FDR and the Supreme Court as he worked to save the nation from its last great economic crisis. So much of the commentary pro- and con- Roberts' challenge to Obama is on whether he's a "crybaby ", or whether Supreme Court justices should attend the State of the Union. These arguments ignore the deeper, historic conflicts between the two branches of government, especially with reform Presidencies.
That makes a new book by author Jeff Shesol all the more important and timely. Supreme Power describes the conservative assault on FDR and the New Deal, and how right-wing hopes came to rest on an activist obstructionist Supreme Court--a narrow but determined majority that struck down the central pillars of Roosevelt's reform agenda.
In an April 2002 speech to the Century Association, my father, William vanden Heuvel, Founder and Chair Emeritus of the Franklin and Eleanor Roosevelt Institute, described just how far the Supreme Court reached in its effort to thwart Roosevelt.
"The anti-New Deal forces literally started thousands of legal actions to stop the fulfillment of programs which the President had initiated, that Congress had legislated, and the people in landslide elections had approved," he said.
The Supreme Court invalidated the Railroad Retirement Act, the National Recovery Act, and Mortgage Moratorium legislation. In 1936 it ruled the Agricultural Adjustment Act unconstitutional. It overturned legislation designed to bring order and safety to the desperate coal mining industry; the Municipal Bankruptcy Act created to save local governments across the country; and the New York State law establishing minimum wages, outlawing child labor and regulating the hours and labor conditions affecting women.
The Court was about to rule on the constitutionality of the Social Security Act and the Wagner Act establishing collective bargaining and protecting the right of labor to organize, and the minimum age and employment laws.
In February 1937, FDR struck back.
He proposed that when a federal judge, including those on the Supreme Court, reached the age of 70 and chose not to retire, the President could add a new Justice to the Bench. The legislation would have expanded the Court to fifteen justices, allowing FDR to appoint New Deal-friendly judges.
The Nation is something of a minor (and feisty) character in the book. Shesol describes how "the editors of The Nation refused to rule out packing the Court, 'though this strikes us as a repugnant idea.' But what The Nation really wanted was a constitutional amendment to strip away the Court's power to nullify legislation.
"We must repeat with wearisome iteration, a constitutional amendment is necessary," the editors wrote.
The magazine ended up supporting Roosevelt's plan because "it will clear the blockage of New Deal legislation." Otherwise, as Thurman Arnold wrote, "the menace of the Supreme Court will continue to hang like an ominous cloud over all legal attempts to solve the social problems that are crowding upon us."
(The magazine's support for FDR's plan caused then-owner Maurice Wertheim to blow his stack and sell it off to the next editor, Freda Kirchwey, in an unusual arrangement. He demanded $30,000 or else he'd sell to the highest bidder. When Kirchwey could only come up with $15,000 he loaned her the rest. So even in his anger Wertheim managed to uphold and support The Nation's tradition of editorial freedom.)
Of course, neither of those things--FDR's Court proposal or amending the Constitution--happened.
The Court abruptly changed course in the middle of the fight--upholding the Wagner Act, Social Security legislation, and even the state minimum wage laws it had previously ruled unconstitutional--with the " switch in time that saved nine."
As Supreme Power describes, the switch was most likely the result of sustained political pressure from FDR and progressives. But as Shesol hastens to add, this conversation became a transformation--"the Constitutional revolution of 1937," as it is known--primarily because of the appointments Roosevelt made to the Court. By the time of his death, FDR had appointed all the justices of the Supreme Court but one.
Which brings us back to our time, and another 5-4 conservative majority that threatens to cut off avenues to economic, political and social reform.
We occasionally hear interesting ideas about court reform, but realistically, change will come to this Court--or the federal courts generally--only through new appointments. So far, the prospects are not encouraging. During Obama's first year in office, progressives rightly lamented not only the slow pace of nominations --Obama has been far slower to fill judicial openings and reshape the federal courts than was President Bush. The opportunity to gain ground on nominations while the Democrats enjoyed a 60-vote margin has been lost. The midterm elections may erode that margin further.
In August 1937, as Shesol recounts, FDR finally got to appoint his first Supreme Court justice: Hugo Black. The Nation called the choice "courageous."
What is needed today--in the face of a sustained conservative assault on the courts--is a series of appointments to the Supreme Court and the federal bench that could truly be described as "courageous." Not as "clever," in a political sense, not as "expedient," but as bold. John Paul Stevens has been such a justice--his retirement will reportedly come at the end of this term--and we will need more like him if reform is not to hit an insurmountable obstacle at the courthouse door.
George Bush pushed the courts sharply to the right and we've seen the consequences. At the end of his first year in office, Obama has made just half of the appointments of his predecessor to the federal appeals and district courts, despite a similar number of vacancies.
It's impossible to overstate the challenges currently on the President's plate. But the Citizens United decision serves as a reminder of the fact that he can't lose sight of judicial appointments. President Obama must use this moment to move aggressively and boldly to restore balance and sanity to our courts.