Crazy Like A Fox, Biden’s Court Packing Gambit

Denis Pombriant
5 min readApr 15, 2021

The number of justices on the Supreme Court was fixed in 1869, not as a constituional amendment, but by a simple law. So it could be changed relatively easily though few politicians on either side of the aisle want to make the effort. So why should the administration go about the effort? Perhaps there’s more at work than we can see.

From 1937, the last time a president wanted to add justices to the Supreme Court.

Does President Biden really want to pack the Supreme Court? Are liberals getting out over their skis in pushing for change or might there be a more nuanced strategy at work? To understand the current court-packing debate and what it portends it is worth reexamining the original attempt by Franklin Roosevelt in 1937 because in politics, and much of life, getting what you want is not always what you say you do.

Most historians agree that the Supreme Court that greeted FDR in 1933 had a strong conservative bent. It ruled six New Deal laws unconstitutional including the NIRA or National Industrial Recovery Act that produced the NRA or National Recovery Administration whose role was to stabilize wages and prices. It also set standards for the work week (35 to 40 hours), abolished child labor and established a minimum wage.

Conservatives in business didn’t like the NRA because it deprived them of much of their ability to compete on price. Conventional wisdom at the time supported a race to the bottom in markets where the lowest cost producer would prevail. Unfortunately, producing at low costs meant rock bottom wages, long hours and child labor.

But the NRA’s approach was unworkable and involved literally millions of pages of regulations that stipulated work hours, wages and other practices throughout the economy. In retrospect, the Supreme Court’s ruling against the NIRA in 1935 was a blessing in disguise because it forced the administration back to the drawing board.

The 1936 election returned Roosevelt for a second term which had been the standard for all presidents since Washington. FDR won 46 of 48 states and 523 electoral votes and gained significant political capital. In this context, he decided to ask for a Supreme Court more sympathetic to his efforts to repair the nation’s economy. But he ran into a buzzsaw of opposition from both parties. Although the Constitution did not stipulate the size of the court, The…

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Denis Pombriant

Researcher, author of multiple books including “The Age of Sustainability” about solutions for climate change. Technology, business, economics.