This article originally appeared in The Detroit News August 8 2024.

President Joe Biden’s plan to tamper with the U.S. Supreme Court relies on arguments that former President Franklin D. Roosevelt deployed in 1937 for his infamous court-packing scheme. That turned out to be one of F.D.R.’s rare defeats, and Congress should reject Biden’s new attempt to interfere with the judicial branch.

First elected in 1933, Roosevelt pursued his New Deal agenda with gusto. The only problem, from his perspective, was the U.S. Supreme Court, which invalidated several New Deal laws. The court even struck down three laws in a single day in 1935, dubbed “Black Monday.”

Early in Roosevelt’s second term, the constitutionality of the Social Security Act and the National Labor Relations Act hung in the balance. Roosevelt began working to shift the ideological balance at the Supreme Court.

Roosevelt announced his plan in early 1937: For every justice over the age of 70, the president would appoint a new justice, up to a maximum of six nominees.

The announcement shocked the political ecosystem, including Roosevelt’s cabinet members, Congress and the Supreme Court, according to legal scholar Stephen R. Alton.

Faced with immediate opposition, Roosevelt defended the plan in one of his fireside chats. He stressed the importance of the rule of law. “In our courts we want a government of laws and not of men,” he said. Government, said Roosevelt, answers to a higher authority. “It is the American people themselves who are in the driver’s seat.”

Urged by advisors to be candid, Roosevelt stated that the men on the Supreme Court were political obstacles. “Our difficulty with the court today rises not from the court as an institution but from human beings within it.” The court needed, he said, “new and younger blood” — men who understood the “modern facts” facing the nation.

Roosevelt tried to downplay concerns about his plan by showing that most states had fixed terms for judges and that the retirement age of 70 was common in government and business.

Somewhat dubiously, Roosevelt claimed that the “vast majority of the American people” favored immediate action on his plan.

Roosevelt concluded with a pledge to defend democracy, saying, “in a world in which democracy is under attack, I seek to make American democracy succeed.”

Fast-forward to 2024. President Biden outlined his plan in a July 29 Washington Post op-ed. First, he proposed a constitutional amendment to countermand the court’s recent presidential immunity decision. Second, he proposed limiting high court justices to 18 years on the bench. Third, he called for a “binding” code of conduct for justices.

Biden’s message to the American people was peppered with the same arguments that Roosevelt used.

Biden opened with an appeal to the rule of law. “No one is above the law,” he wrote. Later he identified the country’s ultimate source of authority: “In America, the people rule.”

Biden criticized the “dangerous and extreme decisions” of the court. He echoed Roosevelt’s “new blood” argument, writing that the court’s membership should change with “some regularity.”

Biden also pointed to other jurisdictions to justify his plan. “The United States is the only major constitutional democracy that gives lifetime seats to its high court.”

Presidents keep an eye on public opinion, whether they serve in the 1930s or the 2020s. Biden asserted that his plan was “supported by a majority of Americans — as well as conservative and liberal constitutional scholars.”

Finally, Biden warned of “increasing threats to America’s democratic institutions” as a reason to adopt his plan. “We can and must strengthen the guardrails of democracy,” he concluded.

Roosevelt’s court-packing plan encountered widespread opposition. Not a single U.S. Supreme Court justice voiced support. Democrats in Congress were mixed. The American Bar Association surveyed its members and found that 86% opposed the plan. Vice President John Nance Garner signaled his disgust by holding his nose and giving a thumbs down sign during a Senate proceeding, according to Marian C. McKenna.

Roosevelt’s plan fell apart and is criticized to this day. Biden’s judicial term limit, though a watered-down version, should meet the same fate.

Permission to reprint this blog post in whole or in part is hereby granted, provided that the author (or authors) and the Mackinac Center for Public Policy are properly cited.