In health care, courting disaster

By John Kominicki The Daily Record Newswire President Barack Obama was out finger-wagging over his health care plan last week, "confident the Supreme Court will not take what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress." How soon they forget. The setting for the truth is 1930s Washington, where newly elected President Franklin D. Roosevelt, backed by a Democratic Congress, is determined to prove the Keynesian theory that Big Government Can Fix Anything. (It's a special tribute to Roosevelt that this was three years before Keynes actually published his theory.) Roosevelt's first mistake, made just after his inauguration in 1933, was passing the Economy Act, which, among other things, slashed the pensions of former federal workers, including retired Supreme Court justices. Point of fact: Oliver Wendell Holmes Jr., who had hung up his robes only the year before, saw his stipend cut in half. As a result, two of the oldest conservative justices still serving, Willis Van Devanter and George Sutherland, instantly put off their retirement plans. That kept the Supreme Court divided into three camps: the conservative Four Horsemen, a more liberal trio dubbed The Three Musketeers and the nickname-deprived duo of Chief Justice Charles Evans Hughes and Associate Justice Owen Roberts. Together they would decide the constitutionality of such seminal New Deal programs as the National Industrial Recovery Act and Social Security. The first showdown came May 27, 1935, when the court ruled unanimously against the administration on three cases concerning the president's powers and the right of Congress to expand them, effectively declaring the Recovery Act unconstitutional. The following January, the court voted 6 to 3 to outlaw Roosevelt's Agriculture Adjustment Act, then dumped the Bituminous Coal Conservation Act and the Municipal Bankruptcy Act and overturned a New York minimum wage law the president had hoped would serve as a model for national pay reform. FDR was furious, complaining publicly that the Supreme Court had created a constitutional no man's land "where no government -- state or federal -- can function." Privately, he vowed revenge. Even before the court's rebukes, Roosevelt had been quietly pondering what might be done to limit the conservative tilt of the high court. One early idea was to expand the court beyond the sitting nine: "If the Supreme Court membership can be increased to 12 without too much trouble," an adviser suggested, "perhaps the Constitution would be found to be quite elastic." But how to take on the gray-bearded black robes without upsetting voters? The solution came from a Harvard law professor, who pointed out that U.S. court judges were allowed to retire at age 70 if they had served at least 10 years on the federal bench. Many chose not to, however, and their advanced ages and plodding pace were clogging the judiciary. Why not get Congress to empower the president to appoint additional judges, ensuring that the court always had someone sufficiently able to discharge the duties of the court? As initially proposed, the Judicial Procedures Reform Bill of 1937 would allow the president to appoint one new, younger judge for each federal judge with 10 years of service who did not retire within six months of turning 70. The total number of appointments would be capped at 50, with Supreme Court additions limited to six, which for Roosevelt's purposes was plenty. The average age of the Supreme Court in 1937 was 71-plus, making it one of the oldest in U.S. history. And Roosevelt didn't mince words: "In exceptional cases, judges, like other men, retain to an advanced age full mental and physical vigor," he said in a message to Congress. "Those not so fortunate are often unable to perceive their own infirmities." The bill was introduced Feb. 5 and Roosevelt pushed it personally in his fireside chats, arguing the court system was slowed with aged and infirm judges who refused to retire. Best to infuse new blood, he lobbied, noting that the size of the Supreme Court had been changed eight times since the nation's founding. But the proposal brought swift opposition from almost all quarters, beginning in the House, where Judiciary Committee Chairman Hatton W. Summers guaranteed it would languish for years. Undaunted, the administration introduced the measure in the Senate, where it also bogged down in committee. Even Vice President John Nance Garner signaled his disdain, holding his nose and signaling thumbs-down from the rear of the chamber. Though the Supreme Court unexpectedly handed down three decisions supporting New Deal legislation March 29 -- they were quickly dubbed "a switch in time saves nine" -- debate over the judicial reform bill would limp along into late summer, when a watered-down version, which added no new judges, was passed July 29. Worse, the fight effectively split the New Deal coalition in Congress and sucked the momentum from additional reforms. It also provided added fodder, historian Michael Parrish wrote, to those who accused Roosevelt of "dictatorship, tyranny and fascism." To be fair, he was also elected two more times. That long tenure, coupled with death and retirement, would eventually allow Roosevelt to completely reshape the Supreme Court under existing rules. In the end, he needed only patience. President Obama might take the history lesson. The numbers that matter most to him are not 5-4, but 7 and 6. That's Justice Scalia's age. Published: Thu, Apr 12, 2012