Sunday, July 24, 2005

Should Presidents Transform US Supreme Court?

Liberals are concerned that President George W. Bush will nominate a justice that will change the balance on the Court and "will overturn seventy years of American jurisprudence".

The United States Constitution became effective in 1789 or 216 years ago. Why aren’t they concerned about overturning two hundred sixteen years of American jurisprudence?

Because President Franklin D. Roosevelt transformed the balance on the U.S. Supreme Court. Actually Roosevelt was elected President serving twelve years, and he appointed eight of the nine Justices, and elevated another to Chief Justice. The Republicans did not filibuster, as that action was unthinkable.

Like President Bush, President Roosevelt did not have a Supreme Court vacancy during his first term, but then he systematically replaced philosophical and economic conservatives with liberals who would support his unprecedented expansion of Federal government authority. During his second and third terms, in less than six years between August 1937 and February 1943, he made eight Associate Justice appointments.

Roosevelt was elected in 1932 during the early years of the Great Depression and had the Democratic Congress enact laws encompassing powers that were previously unimaginable that the Federal government possessed. The New Deal’s National Recovery Administration (NRA) was supposed to work with labor and management to develop national wage, price, and production codes that would, theoretically, have systematized and rationalized prices and wages.

Roosevelt referred to the Court as "nine old men". From
Roosevelt was President for over two years when in May 1935, the Supreme Court, in the case of Schechter Poultry Corp. v. United States, unanimously invalidated the NRA and the legislation that created it. The lengthy, unanimous opinion, the Court struck down the as an unconstitutional exercise of legislative authority by the executive branch:
- "action which lies outside the sphere of constitutional authority"
- "The Constitution established a national government with powers deemed to be adequate, as they have proved to be both in war and peace, but these powers of the national government are limited by the constitutional grants."
- "Those who act under these grants are not at liberty to transcend the imposed limits because they believe that more or different power is necessary."
- "Extraordinary conditions do not create or enlarge constitutional power."
- "the statutory plan is not simply one for voluntary effort. It does not seek merely to endow voluntary trade or industrial associations or groups with privileges or immunities. It involves the coercive exercise of the law-making power."
- "The codes of fair competition which the statute attempts to authorize are codes of laws. If valid, they place all persons within their reach under the obligation of positive law, binding equally those who assent and those who do not assent. Violations of the provisions of the codes are punishable as crimes."
Source: "A.L.A. Schechter Poultry Corp. et al. v. United States."
Argued May 2, 3, 1935—Decided May 27, 1935.

Roosevelt Associate Justice appointments transforms Supreme Court:
- Hugo Black (AL) August 19, 1937–September 17, 1971
- Stanley Forman Reed (KY) January 31, 1938–February 25, 1957
- Felix Frankfurter (MA) January 30, 1939–August 28, 1962
- William O. Douglas (CT) April 17, 1939–November 12, 1975
- Frank Murphy (MI) February 5, 1940–July 19, 1949
- James Francis Byrnes (SC) July 8, 1941–October 3, 1942
- Robert H. Jackson (NY) July 11, 1941–October 9, 1954
- Wiley Blount Rutledge (IA) February 15, 1943–September 10, 1949

In addition, he appointed Associated Justice Harlan Fiske Stone (July 3, 1941) to Chief Justice. [Ref:]

Among the many things the New Deal regulated was the amount of crops allowed to be grown and what they sold for, including mandating that food be destroyed during a time of hunger in America. Could the Federal government powers be so expansive to include telling American citizens what they could grow on their own property for their own use? Even with crops not to be sold, Roosevelt’s re-balanced Court so ruled claiming the constitutional power to regulate interstate commerce. (see George Will column, June 8, 2005 Judging this Court at

See Wickard v. Filburn
Some liberals are today concerned about the intrusive Controlled Substances Act which makes homegrown marijuana used by the citizen for their own medicinal use illegal criminal a person growing . However, the current Court i 2005 reiterated the Federal government commerce clause power in deciding 6-3 the recent medical marijuana case. Justice Clarence Thomas dissented "If Congress can regulate this under the Commerce Clause, then it can regulate virtually anything," including "quilting bees, clothes drives and potluck suppers." Thus "the federal government is no longer one of limited and enumerated powers."


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