Commentary

3-Minute Civics: Presidents, justices, and just presidents

January 10, 2022 5:51 am
Donald Trump and Amy Coney Barrett

President Donald Trump introduces 7th U.S. Circuit Court Judge Amy Coney Barrett as his nominee to the Supreme Court in the Rose Garden at the White House on Sept. 26, 2020, in Washington, D.C. (Chip Somodevilla | Getty Images)

“He was only president for one term, but he changed the balance of the Supreme Court for the next generation. How is that allowed?”

I recently heard this comment regarding President Donald Trump’s court appointments. And I think we can all understand where it’s coming from. Supreme Court justices serve virtually for as long as they choose. True, the court’s power over laws and rights is wielded indirectly (it can only make rulings on the details of cases that come before it, and it can’t just issue a ruling willy-nilly when Congress enacts a law it dislikes). But when it brings that power to bear, it is immense. The Constitution is the ultimate set of rules for what laws and political actions can and can’t be conducted, and the Supreme Court is the final referee in deciding what the text of the Constitution allows and prohibits.

Given how politically charged America is today, it can seem troubling when a political party can win a sheer majority for a finite period of time, and use that majority to cast a stone which will ripple throughout the next generation. And let’s not kid ourselves – the political pendulum seems to be swinging faster and faster; is the court to become an endless game of hot-potato, wherein the party in charge sits around hoping that justices will retire or die while they’re in the driver’s seat? How morbid. And how precedent.

First, three justices in one term is hardly a record. Setting aside George Washington, William Howard Taft set that record just before World War I, appointing six justices in just four years, then getting himself appointed chief justice after his presidency.

But the focus today is on the man who appointed Taft to that seat: President Warren Harding. Elected shortly after World War I and at the dawn of Prohibition, Harding’s reputation has not widely survived in the modern American consciousness. Where it has, it’s usually for the following reasons:

  • Before entering politics, Harding made a fortune as a newspaper publisher.
  • He entered the Republican National Convention ranked sixth in public opinion of Republican candidates. With a clog of three front-runners who refused to ally, the party bigwigs held an all-night meeting and decided Harding should win. He won the nomination on the 10th ballot.
  • He campaigned on a “return to normalcy” platform, pledging a respite from the recent events of World War I and the 1918 flu pandemic.
  • His administration was considered to be widely corrupt. Two of his top advisers were charged with corruption in office. Harding himself died of a heart attack mid-term, shortly before congressional hearings began investigating Teapot Dome, a massive bribery scandal involving the presidential administration and major oil companies. (Interesting side note – in the wake of the scandal, legislation was passed which gave Congress subpoena power to review the tax records of every U.S. citizen, even those elected president.)

And here’s where things tie back into the court. President Harding, placed into power by backroom dealings, accused of corruption, and dead after two years in office, appointed four justices to the Supreme Court. And these appointments had massive ramifications for the next generation.

A decade after Harding’s death, America was in the throes of the Great Depression. Franklin Roosevelt was elected in a massive landslide (winning every state in America outside of the Northeast), and his party won both the House and Senate with large majorities (the next time one party would take back the White House and all of Congress in one term would be 2020). Roosevelt campaigned on his New Deal, the promise to use government intervention to spur America out of the challenges of a depression that saw 25 percent of the workforce unemployed, crops devastated by the Dust Bowl, and a stock market in shambles. Using his Congressional supermajority, Roosevelt enacted a number of social and economic laws to lift America out of this turmoil.

But a critical mass of the Supreme Court, centered around the justices appointed during the short-lived Harding administration, struck down law after law. Regulations of the energy companies? Unconstitutional. Subsidies for farmers? Invalid. Minimum wage for women and children? Struck down.

So what happened next? Things escalated, until they didn’t. Roosevelt kept passing laws, and a bare majority of the Supreme Court kept striking them down. FDR responded by pushing for an expansion of the court that would have let him appoint five more justices. And at the last minute, the “swing” vote of the court, Justice Owen Roberts, switched to be in favor of the New Deal laws. With no need to make further changes, Roosevelt’s court-packing plan fell by the wayside, and we’ve stuck with nine Supreme Court justices ever since. Thus, Roberts’ change of heart has been called “the switch in time that saved nine.”

Within two years, the federal government enacted Social Security, unemployment insurance, minimum wage, child labor laws, and a 44-hour work week. And Roosevelt went on to appoint nine justices to the court, several of whom formed the backbone of the liberal-activist Warren Court of the 1950s and ’60s, which ended school segregation, expanded free speech, and upheld the Civil Rights Act.

Presidents are limited in their power. Since the 22nd Amendment, they can be elected only to two full terms. During those years they have vast power, but at high noon on Jan. 20 in their term’s last year, they turn into a pumpkin: just another regular citizen. Supreme Court justices are, in some ways, the exact opposite – their power is exceedingly narrow, but they can hold it till the hour of their death.

Presidents are political. They can take extreme stances, and if America disapproves, or the needs of the country demand different solutions, the electorate can make a dramatic change pretty quickly. But Supreme Court justices can last for 30 or 40 years. Appointing them for political reasons or single-issue agendas can bind the next generations to the will of the past. Let’s tread lightly.

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Chris Pappavaselio
Chris Pappavaselio

Chris Pappavaselio is a former high school Latin teacher and a second year law student at Harvard Law School.

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