danivon wrote:Charming, Russell, just charming.

There was supposed to be a winkie emoticon, i.e. to indicate I was making a joke. However, for some reason it didn't show up.

danivon wrote:Anyways, is it the case that Presidents are not allowed to offer criticism if they disagree with a USSC decision, or the direction certain Justices are going in?

And yes they are. However, he did it in such an extremely incompetent manner that he made himself look bad. I mean this is a guy that is supposed to be really smart and has taught Constitutional Law in a law school and he words his comment in such a way as to say he doesn't understand one of the basic jobs of the Supreme Court as laid out in what has to be one of the top 3 most famous Court decisions. (from a lawyers point of view).

Archuduke

Your explanation that the US Supreme Court did not bow to pressure from Roosevelt is possible but surely not proven. What we know are the following facts: (1) President Roosevelt was reelected in November 1936 easily, giving him considerable political clout, (2) we know that one of the conservatiive justices changed his views on whether the federal government could regulate wage and hour laws in the states (without any explanation of why he changed his mind, (3) the U.S. Supreme Court announced the decision in the case almost two months after the court packing plan was announced, (4) shortly after the decision a conservative justice retired.

Now all of the ‘facts: that are marshaled in defense of the idea that the US Supreme Court did not give in to pressure are not so clear. The first supposed fact is that the conservative justice who would up changing his vote announced in December he was going to do so. First of all, how is that known? Annoucning it publicly would seem to be extremely out of character for a justice.. If he told nother justices in an internal meeting of the court, then that fact is not as reliable. The U.S. Supreme Court would have been very motivated to act as if it was not being pressured. Even if that judge changed his mind in December why would we change his mind on such a fundamental principle? The election results came out in November, one would suspect that rumblings about something being done about the court would have been going about Washington far before February. So even if that justice “changed his mind” in December that does not mean that the court was not already doing so in response to executive pressure.

The same analysis holds true with regard to the vote taken by the Court. Again these were internal discussions, not published, by an entity that would be motivated to act as if was not bowing to pressure. With regard to the justice retiring because benefits were available, I wonder if any of the current conservative justices on the court would retire for a similar reason when to do so would cause a historic change in the court’s composition? The bottom-line there is no way to know why a justice retires (unless they are in poor health)

There is strong circumstantial evidence that the court gave in to a powerful executive (conservative justice changing his mind about a fundamental principle, powerful executive just coming off an election mandate, decision inexplicably almost two months after the plan was put forth, conservative justices retiring). Your contention relies on the internal workings of the court and there is a question as to whether we can ever conclusively establish what happened in those internal discussions and it also relies on the U.S. Supreme Court not knowing well before February that the president was planning on doing something to curb their power.

freeman2 wrote:Your explanation that the US Supreme Court did not bow to pressure from Roosevelt is possible but surely not proven. What we know are the following facts: (snip), (2) we know that one of the conservatiive justices changed his views on whether the federal government could regulate wage and hour laws in the states (without any explanation of why he changed his mind.

See the problem is this is were you are wrong. Roberts wrote in Nebbia(1936) for broader interpretation of gov't powers. As a matter of fact, Roberts was the Anthony Kennedy of the Hughes Court so Parrish wasn't a complete flip flop out of the blue.

freeman2 wrote:(3) the U.S. Supreme Court announced the decision in the case almost two months after the court packing plan was announced,

and

freeman2 wrote:(The first supposed fact is that the conservative justice who would up changing his vote announced in December he was going to do so. First of all, how is that known? Annoucning it publicly would seem to be extremely out of character for a justice..

This is not a random announcment by one of the Justices. The actual Court records show the vote taken on Dec 19th (two months before FDR's announcement.) showed the law was going to be upheld on a default (4-4) decision. Further, the vote held on Feb 1st (or 4 days before FDR's announcement) showed the law was going to be upheld on a firm (5-4) decision. This if anything shows FDR's court packing plan had nothing to do with it.

And before you argue that Court records are secret. They become part of the public record at some point (I believe it is 25 years after the death of the last Justice involved but I am not sure) so we know what the actual votes of the Justices were on Ddec 19th and Feb 1st. Therefore, we can see they voted the way the did prior to FDR's announcement.

The rest of your argument is even weaker. For example, Van Deventer, the first to retire, said he would have retired 5 years earlier due to illness but was reliant on his salary. Further, the first instance of the Court packing scheme to even be mentioned wasn't until a Dec 16, 1936 letter to the Attorne General from a Princeton Univerty Professor. Therefore, I think we can resaonably conclude that the Justices had no idea of the plan at the Dec 19th vote.

Finally, most respectible well regarded modern legal historians pretty much know the court packing scheme had no influence over the Court's actions and that it was an absolute and unmitgated failure for FDR that did extreme amounts of damage on his ability to get any further legislation passed.

I guess President Roosevelt was just plain stupid not to have waited for an ill Supreme Court justice to retire and for Roberts to swing his vote over to the pro-government regulation side. If it was that obvious that Roosevelt was going to get his way, then why the need fofr the court-packing plan at all? And you have not answered the contention that the Supreme Court could have been feeling pressure as soon as November, well before any vote was taken.

freeman2 wrote:I guess President Roosevelt was just plain stupid not to have waited for an ill Supreme Court justice to retire and for Roberts to swing his vote over to the pro-government regulation side.

Well, because the Van Deventer didn't make the decision to retire until Congress reinstated full salary pensions in March of 1937.

And Roberts didn't suddenly swing his vote over to the pro-gov't side. He had voted for position before. Heck, I even cited a specific case.

freeman2 wrote: If it was that obvious that Roosevelt was going to get his way, then why the need fofr the court-packing plan at all?

Strawman!!!! Your snideness aside, I never argued this nor do I know anybody that does argue this. It wasn't obvious that Roosevelt was going to get his way. However, the fact is the court packing scheme had no effect on the Court's opinions and it was an unmitigated political failure for Roosevelt in the end.

Freeman, I have the facts on my side. You can try to deny it all you want but the facts show Roberts voted to grant cert on Parrish before the election. The vote on Parrish was made before the Judiciary bill was introduced. The concept of the court packing scheme was not even broached with the Administration until 3 days before the conference vote. What is it Liberals like to say about Fox News. Everybody is entitled to their own opinion but not their own facts.

So what would the effect be if today Obama came out and made some proposals to the way the Supreme Court works?
Perhaps including enlarging the court by two members?
Perhaps revising the way appointments are made?
Perhaps codifying the terms under which Justices Must recuse themselves from certain issues?
An institution which has changed little since its inception, and which seems to have become just another politicized instrument strung between two competing ideologies seems ripe for improvements. IS it even possible to consider changes?
And, faced with change, would the current court behave differently as a way to forego those changes? Prhaps its impossible to know for certain, but I have read commentators who think Roberts is particularly sensitive to the possibility that his court's legacy t will be to be seen as wholly political....

So what would the effect be if today Obama came out and made some proposals to the way the Supreme Court works?

The prediction that you just made on % and electoral votes would be wrong.

An institution which has changed little since its inception, and which seems to have become just another politicized instrument strung between two competing ideologies seems ripe for improvements.

I believe the majority of the US electorate sees it differently than this.

What? RickyP is not mainstream? (Neither am I, so no worries... )

I don't know, voting to find New York's minimum wage law in June 1936 to be unconstitutional and then finding Washington's minimum wage law law to be constitutional in December, 1936 seems like a huge change to me. And there were three significant New Deal programs created in 1937-1938. It doesn't hurt to let the Supreme Court know that they have to give due deference to the other two branches.

freeman2 wrote:I don't know, voting to find New York's minimum wage law in June 1936 to be unconstitutional and then finding Washington's minimum wage law law to be constitutional in December, 1936 seems like a huge change to me.

Not really. Obviously you are refering to Morehead v. New York ex rel Tipaldo (1936) The problem with this was there was already a New York law found Unconstitional in the Adkins case (1934). The Tipaldo law wasn't significantly then the Adkins law. Roberts gave indications in 1936 that he wanted to overturn Adkins. The problem is the plaintiff in Tipaldo didn't challenge the Adkins decision. Due to that Roberts stayed with stare decisis.

Further, in Nebbia(1934) Roberts clearly announced he was open to giving more deference to Gov't power. Which was 3 years before the Court packing plan.

freeman2 wrote:And there were three significant New Deal programs created in 1937-1938

True but it was more of a fight to get them passed and it was significantly smaller then actual New Deal programs (New Deal techicnally is only considered to have from from 33-36). Further, D's lost control of Congress in 38.

freeman2 wrote:It doesn't hurt to let the Supreme Court know that they have to give due deference to the other two branches.

Even at great political cost? Like I said, most modern historians view the court packing scheme as a complete and total failure. I think the term used in the wikipedia article is a humilating loss for Roosevelt.

ray

I believe the majority of the US electorate sees it differently than this

Here's evidence that says you are wrong.

Three-quarters of Americans say the U.S. Supreme Court will be influenced by politics when it rules on the constitutionality of a health-care law signed by President Barack Obama two years ago.
The sentiment crosses party lines and is especially held by independents, 80 percent of whom say the court will not base its ruling solely on legal merits, according to a Bloomberg National Poll. More Republicans than Democrats, by 74 percent to 67 percent, say politics will play a role in the court’s health- care decision

http://www.businessweek.com/news/2012-0 ... are-ruling

The notion that Obama should be looking for precedence from stuff that (may or may not have) happened 75 years ago when we had a massive depression and the looming threats of fascism and communism is quite troubling.

Ricky, can you see the difference between the phrase "influenced by policits" with "seems to have become just another politicized instrument strung between two competing ideologies"?

Ricky, do you think that the high Republican and Independent ratings for that question are based on the fear that the USSC will uphold the Act, which to them would be as egregious as striking it down would be to many Democrats?

Once the decision is actually in, a lot of people will suddenly decide that the USSC was apolitical after all (while a lot of others will see their fears of a partisan bias in the court realised), and that majority could well disappear.

danivon wrote:Hmm. Because we've never seen members of the legisature who inveigh against Roe v Wade...?

Re the executive branch (who can account for all of our congresspeople?) can you think of a time when any President from Eisenhower to Bush 43 has disagreed so openly, definitively and strongly with a sitting Supreme Court?