Donald Trump is not the first President to be profoundly frustrated by the Federal judiciary. Franklin Delano Roosevelt, facing his own crisis of the Great Depression, again and again saw critical elements of his New Deal legislation struck down as unconstitutional by the Supreme Court. The Supreme Court applied a doctrine of “economic due process” first applied in 1905 in the case of Lochner v. New York. The Supreme Court created rights of “freedom to contract” articulated in these decisions often held that efforts to regulate economic activities, through things like minimum wage laws and maximum work week hours legislation, infringed on an individual’s supposed Constitutional right to freely contract. For three decades Lochner was the law of the land, until FDR grew weary of its interference with his New Deal efforts.
Deriding the “nine old men” of the Supreme Court, and unwilling to wait for deaths or retirement to appoint his own, FDR came up with a plan to pack the Supreme Court with friendly justices by expanding the number from the traditional nine justices to fifteen. FDR argued that nothing in the Constitution limited the Supreme Court to nine justices, and well, he just needed to get stuff done. The proposal set off a near Constitutional crisis and was not well received even in a Congress dominated by FDR’s own party. The legislation never was passed, but it served its purpose anyway.
Feeling the heat, and desiring to preserve the sanctity of their nine, the Supreme Court reformed rendering decisions more favorable to FDR’s New Deal proposals. The turning point came in 1937 with West Coast Hotel v. Parrish, which while not directly overturning Lochner upheld the the Constitutionality of the kind of minimum wage statute previously held unconstitutional by the Court. With the Supreme Court’s suddenly more friendly attitude toward New Deal reforms the plan to pack the Court was quietly abandoned. The Court’s change of heart is often referred to as “the switch in time that saved nine.”
Now House Republicans are pushing a new kind of plan to influence the Federal judiciary, though this one might be better described as a court unpacking scheme. Long frustrated by liberal decisions from what conservatives deride as the “nutty 9th Circuit,” Republicans are pushing a bill to split up the 9th Circuit. While similar bills are not new, they are somewhat of an annual staple of legislation, this particular effort is suddenly being touted in conservative media as the target of new momentum and a big push.
I suggest the timing of this media blitz pushing to the top burner a long moribund idea is not an accident. The Ninth Circuit is right now considering the Trump administration’s challenge to a restraining order against his immigration ban. I suggest that Republicans are attempting to pressure the Ninth Circuit into a favorable decision by bringing this threat to its sanctity to a higher public profile. They seek their own decision switch this time to save Circuit Nine.