Volume 17
Issue
2
Date
2019

The Other “Switch in Time”: How the Opposition Changed the Debate Over the Court-Packing Plan and Won

by Justin Braga

The conversion of the court-packing plan from a controversy over judicial efficiency and the modernization of legal interpretation into one about the rule of law and the integrity of the judiciary undermined the lobbying influence of organized labor and bolstered that of lawyers. Specifically, the alignment of labor organizations with the plan and the arguments made in support of it crystallized the opposition’s claim that the plan was a political power grab by President Roosevelt. Furthermore, the inability of labor organizations to generate and maintain support for the plan contributed to the opposition being able to change the parameters of the debate over it. Meanwhile, the opposition was able to generate and sustain support largely from bar associations and legal professionals. The opposition was more successful because it was able to claim credibility over the constitutional issues the court-packing plan implicated. The combination of all these factors contributed to the parameters of the debate changing to topics more favorable to the opposition. This change, in effect, undermined the labor unions’ lobbying power and bolstered the lawyers’ opposition.

Any future attempt to increase the size of the Supreme Court should be mindful of the reasons the 1937 plan failed. Following the confirmation of Justice Brett Kavanaugh, some have openly raised the possibility of Democrats attempting to pack the Supreme Court. If they do, I predict the grounds on which the Democrats justify the plan and the organizational alignment on both sides of the issue will again play an important role in determining whether the plan is politically viable.

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