So let’s suppose that the Supreme Court had struck down Obamacare and same-sex marriage last month, instead of upholding both. Would Texas Sen. and presidential aspirant Ted Cruz be demanding a constitutional amendment requiring the Court’s justices to stand for election in order to keep their jobs? And would liberals be rallying to the defense of the Court, and condemning any effort to alter its supposedly august traditions?
Of course not. Throughout our political history, the team that loses in the Supreme Court has tried to alter the Court’s power and influence. This battle isn’t about deep judicial principles or timeless heritage; it’s about whose ox gets gored.
That’s why during the Civil War, Republicans proposed abolishing the entire Supreme Court and replacing it with a new one. The Court was still led by Roger Taney, author of the notorious Dred Scott decision on slavery. Creative GOP legislators pointed out that the Constitution simply provided for “one Supreme Court”; it didn’t say anything about how the Court should be constituted.
Others proposed expanding the number of justices from nine to 13, which would give President Abraham Lincoln four new appointees. In his 1861 inaugural address, Lincoln had emphasized that “the people” – not “that eminent tribunal” called the Supreme Court – were the “rightful masters” of the Constitution. There was nothing in the document about the size of the court, which had fluctuated between six and 10 justices since 1789. So why not let Lincoln choose a few more?
After Lincoln was assassinated, Congress would actually reduce the Court’s size to seven in order to prevent his successor, Andrew Johnson, from appointing new members. Following the election of Ulysses S. Grant in 1868, the Court went back to nine, where it has stayed ever since.
But it has also remained a ripe target, on every side of the political aisle. After he left the White House, the proud trust-buster Teddy Roosevelt proposed that judicial decisions be subject to popular recall. Striking down several of Roosevelt’s prized economic regulations, the Supreme Court had become “a menace to the welfare of the Nation,” Roosevelt charged. Only the nation’s voters could rein it in.
Two decades later, Roosevelt’s distant cousin would suggest a different remedy. Frustrated by the Court’s rulings against his New Deal legislation, Franklin D. Roosevelt proposed that the president be allowed to add up to six new justices if none of the current crop retired. The Supreme Court, FDR claimed, had “improperly set itself up as a third House of the Congress – a super-legislature.”
Fast-forward to last week, when Cruz charged the Court with behaving like – you guessed it – a “super-legislature.” In the Obamacare and same-sex marriage cases, Cruz said, the Court was “simply enacting the policy preferences of the elite judges who are serving upon it.”
But instead of allowing the president to appoint more judges, FDR-style, Cruz proposed that every justice, starting with the second national election after their appointment, sit for a “retention election” every eight years. Those who failed to win approval from a majority of all the voters, and from the electorates of at least half the states, would have to step down.
It’s unclear whether this would actually help Cruz’ fellow Republicans, who might stand to lose seats on the Court as the country shifts leftward on questions like marriage equality. Maybe that’s why most GOP spokesmen have stayed quiet about Cruz’s proposal, leaving it to Democrats to denounce him as reckless, irresponsible or, to quote one popular Facebook page, a “nut job.”
But the same charge was leveled at everyone who wanted to tinker with the Supreme Court, including some of our greatest liberal heroes. Following Teddy Roosevelt’s effort to institute popular recalls of Court decisions, one business journal suggested that there was a “serious question” about Roosevelt’s “mental balance.”
Critics made similar insinuations about Franklin Roosevelt, who eventually backed down from his court-packing plan. But the rest of his key New Deal legislation was upheld by the Court, which most likely altered its doctrines to save its own skin.
So whatever you think of Ted Cruz’ plan to control the Supreme Court, don’t dismiss him as crazy; he’s doing precisely what other politicians have done, whenever they find themselves on the losing side. And if his proposal goes down in flames, as it’s likely to do, remember that even failed attacks on the Court can affect its behavior. The justices are political creatures, as Ted Cruz correctly noted last week. And they are watching.
Jonathan Zimmerman teaches history and education at New York University. He is the author of Too Hot to Handle: A Global History of Sex Education.