The Rule of the Courts

Adopting a Canadian Style Legislative Override to Reconcile American Judicial Review...

to forego the constitutional amendment process to institutionalize his New Deal and instead purported to reconstitute the court in his favor. 34 While Roosevelt’s initial plan to “pack the court” by legislatively increasing the number of Supreme Court justices, from 9 to 15, failed in the U.S. Senate, he did succeed in its reconstitution during his three-plus terms in office. 35 This is because the Court, after the packing plan was announced, signaled its willingness to stand down in its confrontation with the Administration and because Roosevelt was able to fill an atypically large number of vacancies on the Court with charismatic New Deal supporters including Justices Hugo Black, Stanley Reed, Felix Frankfurter, William O. Douglas, Frank Murphy, James F. Byrnes, Robert H. Jackson and Wiley Rutledge. 36 The New Deal consensus endured largely because conservatives reconciled themselves to the New Deal’s legitimacy and liberals adjured greater government involvement in American life. The system, however, came under strain when the New Deal coalition began to fracture on the issue of civil and political rights for racial minorities. An early manifestation occurred in May 1968, when a coalition of Republicans and conservatives Democrats in the U.S. Senate filibustered and defeated President Johnson’s nomination of Associate Justice Abe Fortas to replace Earl Warren as United States Chief Justice. 37 The Senate opposition stemmed from the fact that Fortas, who was personally very close to President Johnson, was seen as a key member of a Supreme Court that had contro versially expanded upon the New Deal consensus to provide constitutional rights to racial minorities, especially in the realm of criminal procedure. Richard Nixon, who replaced Johnson as President in 1969, was therefore able to reconstitute the Court in a conservative direction when he nominated 34 Bruce Ackerman, Revolutionary Constitutions, pp.361-403 (2019) (Ackerman notes that FDR, who had three-quarter supermajorities in both Houses of Congress and state legislatures could easily have obtained a constitutional amendment that requires passage by two-thirds majorities in each House and ratification by three-quarters of state legislatures. 35 Id. 36 Id. 37 Abraham, Henry J., Justices, Presidents, and Senators: A History of the Supreme Court Appointment Process (2001).

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