What's a poor, beleaguered president to do when a majority of the Supreme Court wants to take the country in one direction while most of the voters in the country want to go in another?
The last time this sort of situation occurred was 1937, when Franklin Roosevelt was president. The Supreme Court then was made up of four justices widely viewed as conservative -- the "Four Horsemen," Pierce Butler, James Clark McReynolds, George Sutherland, and William Van Devanter. Not many of us today would recognize any of them. Three judges were tagged as liberals, the "Three Musketeers" -- Louis Brandeis, Benjamin Cardozo, and Harlan Fiske Stone. Cardozo and Brandeis were brilliant. Stone was capable.
That left Chief Justice Charles Evans Hughes and Justice Owen Roberts as the swing votes.
FDR's rush of legislation following his election in 1932 might have caught the "nine old men" by surprise. Their reaction was to strike down significant chunks of the emerging New Deal as unconstitutional, leaving the president furious. Roosevelt, a lawyer himself (though he never graduated from law school), knew the Constitution says nothing about how many justices should sit on the High Court. Once there were six; another time there were 10. There have been nine since 1869. Roosevelt proposed legislation that would give him authority to appoint an additional justice for every sitting member over the age of 70 years and six months. That, he figured, would give him the votes he needed to pass the New Deal, entire.
It was a lousy idea, but Roosevelt was so popular and his party so dominant in the Congress he probably never doubted he would have his way.
The justices had been reading the papers and two months after FDR outlined his "court-packing scheme," they voted 5 to 4 in upholding a New Deal-style law in Washington State that had created a minimum wage. Hughes, it seemed, had turned Roberts around. It was, wags said, "the switch in time that saved nine."
This court seems most likely to hang tough in cases that involve politics. Critics are still deploring the Citizens United decision that allows corporations and labor union to give all they want to candidates. They are equally upset by this week's decision to gut a key section of the Voting Rights Act. The justices may be reading the papers a little more closely on cultural questions, voting this week to uphold same-sex marriage in one decision and declining to rule on the other.
It seems highly unlikely that any of this court's conservatives -- Chief Justice John Roberts and Justices Antonin Scalia, Clarence Thomas, and Samuel A. Alito, today's "Four Horsemen" -- are likely to have a change of heart and start approving liberal legislation (though, it must be said, the chief justice, to the dismay of many conservatives, did uphold Obamacare). Change, then, will come only when vacancies occur. Roosevelt wanted to add a new judge for every judge aged 70 years and six months. Four judges fit that description today --Ruth Bader Ginsburg, 80, Antonin Scalia, 77, Anthony Kennedy, 76, and Stephen Breyer, 74.
Roosevelt fretted that his nine old men hung on for years and years. He complained that William Howard Taft appointed five justices in four years, while, as of early in 1937, he had appointed not a single one. Then the dam burst -- Hugo Black later in 1937, Stanley Reed and Felix Frankfurter in 1938, William O. Douglas in 1938, with more to follow.
President Obama should be so lucky.
James M. Perry, a prominent veteran political reporter, is contributing regular observations for post-gazette.com. Mr. Perry was the chief political correspondent of The Wall Street Journal until his retirement. Prior to that, he covered national politics for the Dow Jones weekly, The National Observer.