Tuesday, December 24, 2019
baudewatch department:
Once upon a time, the legend goes, President Roosevelt's new deal programs were threatened by a conservative majority on the Supreme Court, in the tail end of the Lochner Era.
Roosevelt threatened to pack the court with new members, and the conservatives blinked, and started to allow more of his socialist economic programs. As time went on some justices died or retired and Roosevelt was able to appoint a new crop, averting a constitutional crisis.
My understanding of this version of history changed today, when I read Will Baude's article on the Unconstitutionality of Justice Black.
Baude, of the Volokh Conspiracy and his new blog Summary Judgment, formerly of the Crescat Sententia blog, prefers to publish not perish, and has law review articles on a bunch of hot topics.
https://reason.com/2019/12/23/published-the-unconstitutionality-of-justice-black/
This one looks at a short case where a challenge to Justice Black's seating on the Supreme Court was curtly denied on standing grounds.
Baude argues, persuasively in my opinion, that the plaintiff did have standing as a member of the Supreme Court bar.
He then looks at the merits of the case, and finds reason to suspect that the plaintiff was, or may have been, right, and Black as nominated and confirmed to a seat that wasn't actually vacant, because it as still held by a Justice who had taken senior status (so he could still get paid) but had not resigned.
The court refused to confront the issue, and in a fait accompli it was never discussed again until after Black retired and died.
The statutory and constitutional interplay is tricky, and I'll just point to how Baude handles it. My small contribution to the debate is this: If Baude is right that it was unconstitutional to appoint Black,
then Roosevelt actually did pack the court, adding a new and reliable post-Lochner vote. And none of us noticed it, except for two lawyers, until now. It's time to go re-write some history books.
Why this matters:
The New Deal Court allowed Roosevelt, and later LBJ, to expand the power of the executive branch over the civilian economy.
Under Reagan and now Trump there is a movement to bring back the constitution from exile. (The leaders of this movement deny it exists.) The agenda includes the commerce clause, incorporation of the 8th 2nd and 6th amendments, and restoring the 14th Amendment's P&I clause.
This has liberals talking about a new court packing plan, or at least using the threat of one as a lever to influence the court and especially the chief justice.
I think it is relevant to that debate to consider that maybe FDR did pack the court, and we just didn't notice.
edit: related: https://www.cato.org/blog/improper-appointments-supreme-courts-legitimacy-1937-now
Once upon a time, the legend goes, President Roosevelt's new deal programs were threatened by a conservative majority on the Supreme Court, in the tail end of the Lochner Era.
Roosevelt threatened to pack the court with new members, and the conservatives blinked, and started to allow more of his socialist economic programs. As time went on some justices died or retired and Roosevelt was able to appoint a new crop, averting a constitutional crisis.
My understanding of this version of history changed today, when I read Will Baude's article on the Unconstitutionality of Justice Black.
Baude, of the Volokh Conspiracy and his new blog Summary Judgment, formerly of the Crescat Sententia blog, prefers to publish not perish, and has law review articles on a bunch of hot topics.
https://reason.com/2019/12/23/published-the-unconstitutionality-of-justice-black/
This one looks at a short case where a challenge to Justice Black's seating on the Supreme Court was curtly denied on standing grounds.
Baude argues, persuasively in my opinion, that the plaintiff did have standing as a member of the Supreme Court bar.
He then looks at the merits of the case, and finds reason to suspect that the plaintiff was, or may have been, right, and Black as nominated and confirmed to a seat that wasn't actually vacant, because it as still held by a Justice who had taken senior status (so he could still get paid) but had not resigned.
The court refused to confront the issue, and in a fait accompli it was never discussed again until after Black retired and died.
The statutory and constitutional interplay is tricky, and I'll just point to how Baude handles it. My small contribution to the debate is this: If Baude is right that it was unconstitutional to appoint Black,
then Roosevelt actually did pack the court, adding a new and reliable post-Lochner vote. And none of us noticed it, except for two lawyers, until now. It's time to go re-write some history books.
Why this matters:
The New Deal Court allowed Roosevelt, and later LBJ, to expand the power of the executive branch over the civilian economy.
Under Reagan and now Trump there is a movement to bring back the constitution from exile. (The leaders of this movement deny it exists.) The agenda includes the commerce clause, incorporation of the 8th 2nd and 6th amendments, and restoring the 14th Amendment's P&I clause.
This has liberals talking about a new court packing plan, or at least using the threat of one as a lever to influence the court and especially the chief justice.
I think it is relevant to that debate to consider that maybe FDR did pack the court, and we just didn't notice.
edit: related: https://www.cato.org/blog/improper-appointments-supreme-courts-legitimacy-1937-now
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