This article is long, but very informative on the history of things like this Obama did. The part about what FDR attempted with threatening the Supreme Court is informative if your not familiar with it.
This article appeared in Forbes on April 8, 2012.
President Obama’s recent attack on the Supreme Court seems to be unprecedented.
There have been cases where a president was upset about an opinion after it was issued, but not cases where a president tried to influence a decision in the making. That might be comparable to jury tampering — usually treated as a felony.
The vehemence of Obama’s attacks makes one wonder whether an ally on the Supreme Court has leaked a preliminary, confidential vote against Obamacare.
By trying to bully another branch of our government, Obama appears to be challenging our federal system itself, based as it is on a separation of powers.
Perhaps we need to remind ourselves how hard people struggled and how much they sacrificed to develop this, the most successful political system ever devised for limiting government power and protecting liberty.
The most dramatic struggles took place in England, but the fullest development occurred here in America.
The whole point of the Supreme Court is judicial review — to determine whether the legislative or executive branches exceeded limitations on power specified by the Constitution. As Alexander Hamilton wrote in Federalist No. 78, “Limitations of this kind can be preserved in no other way than through the medium of the courts of justice, whose duty it must be to declare [as void] all acts contrary to the manifest tenor of the constitution.”
Madison shared this view: “A law violating a constitution established by the people themselves, would be considered by the Judges as null and void.”
Chief Justice John Marshall’s opinion in Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803) confirmed the principle of judicial review. It was also reported to be the first time in the Western world that judges overturned a law because it violated a Constitution.
Thomas Jefferson won the presidential election that was decided on February 17, 1801, but he wasn’t scheduled to take office until March 4, 1801. During the interim, Federalists passed the Judiciary Act of 1801 that increased the number of circuit courts and judges. Until the last minute of his term, President John Adams appointed men who became known as “Midnight Judges.” Jefferson was outraged. As soon as he was inaugurated, he began terminating many of the judges. In 1803, Federalist Samuel Chase, an Associate Justice of the Supreme Court, denounced Jefferson’s efforts. The following year, Jefferson’s allies in the House voted eight articles of impeachment, generally charging Chase with biased opinions, but the Senate voted to acquit him. Chase was the only Supreme Court justice ever impeached. Since then, justices have been more careful to avoid the appearance of bias, and the prevailing view has been that impeachment is justified by legal or ethical misconduct rather than opinions.
The closest case to Obama’s situation is probably President Franklin Delano Roosevelt’s effort to pack the Supreme Court.
In 1935, the Supreme Court unanimously struck down the National Industrial Recovery Act that was a hallmark of the New Deal. It empowered the president to issue executive orders authorizing industrial cartels for fixing prices, wages and output, a variety of economic fascism fashionable at the time. The following year, by a 6 to 3 vote, the Supreme Court struck down the Agricultural Adjustment Act that provided the basis for Agriculture Secretary Henry Wallace’s program to create food shortages in an effort to raise farm prices, by plowing under some 10 million acres of farmland and destroying some 6 million pigs. This law made food more costly for the three-quarters of Americans who weren’t farmers.
FDR was furious. He complained that the justices were dragging Americans back to “horse and buggy days.” He fumed, “Are the people of this country going to decide that their Federal Government shall in the future have no right under any implied power or any court-approved power to enter into a national economic problem?”
FDR didn’t take action against the Supreme Court until after his overwhelming win in the 1936 presidential election (the electoral college vote was 523 to 8). Then FDR urged Congress to take up Supreme Court “reform.” This meant giving him the power to appoint one new judge for each judge who didn’t retire at a legally mandated age — 70. There wasn’t a law requiring Supreme Court justices to retire at a particular age. If Congress passed this reform, FDR figured he could appoint a half-dozen justices to his liking, and there wouldn’t be any more successful legal challenges to the New Deal. FDR’s court reform was broadened to include lower courts with three-judge panels, because more than a hundred lower court federal judges had ruled that various New Deal measures were unconstitutional.
FDR unveiled his court reform on February 5, 1937. He started selling it in his “Fireside Chat” of March 9, 1937. Among other things, he suggested the justices were so decrepit, they couldn’t fulfill their responsibilities. FDR claimed that his aim was “to save the Constitution from the Court and the Court from itself.”
Despite FDR’s popularity, most people didn’t seem to believe him. There was widespread skepticism about FDR’s claim that he was only trying to help aged justices do their job. Admirers of 81-year-old liberal justice Louis Brandeis were offended. Soon increasing numbers of New Deal supporters were expressing opposition to FDR’s plan that was derided as “court packing.” Historian Frank Freidel observed, “Indignant though many of them had been over the anti-New Deal decisions, a considerable part of the liberals viewed the court as the bulwark of American liberties. At that very time, when European dictators were stripping people of their liberties, they were especially sensitive to the danger that the United States might suffer the same malign fate.” Americans were concerned that court reform would set a precedent that might be exploited by an unscrupulous successor.
On Capitol Hill, many members of the president’s own party became alarmed by his over-reach. For them, the issue wasn’t the future of the New Deal, which is what FDR was thinking about. The issue was the importance of defending the separation of powers in the U.S. Constitution. Virginia’s Democratic Senator Carter Glass denounced FDR’s court packing scheme as “a proposition which appears to me utterly destitute of moral sensibility and without parallel since the foundation of the Republic.” Democrats Burton K. Wheeler, Harry Byrd and Millard Tydings worked with Republicans William E. Borah, Charles L. McNary and Arthur Vandenberg.
Senator Wheeler thundered: “Create now a political Court to echo the ideas of the executive and you have created a weapon which in the hands of another President could… cut down those guarantees of liberty written by the blood of your forefathers.”
The Senate had the votes to defeat FDR’s plan. “Presidential pride was sorely scorched,” recalled James Farley, the Chairman of the Democratic National Committee. “For weeks and months afterward I found him fuming against the members of his own party he blamed for his bucket of bitterness.”
Since President Obama seemed quite agitated about the possibility that the Supreme Court might be focusing on the constitutionality of Obamacare, one wonders whether he might be more comfortable with the situation in Venezuela where President Hugo Chavez has more power. Chavez ordered the arrest of Judge Maria Lourdes Afiuni after she made a decision he didn’t like. Chavez reportedly had called for Afiuni to be given a 30-year prison sentence.
In Pakistan, in 2007, President Pervez Musharraf arranged to have himself elected to a second term, but the Supreme Court determined that there were irregularities. Musharraf ordered Chief Justice Iftikhar Chaudhry to resign and suspended the inconvenient Constitution.
The most disruptive attacks on an independent judiciary involve large-scale firings.