Rick Pildes has an essay (here) which he discusses at Balkinization. The essay argues that the Court has more power to act in countermajoritarian ways than previously supposed. One of the most surprising points made in the essay (a point drawn from the book he is reviewing, Supreme Power by Jeff Shesol) is how much Roosevelt suffered by taking on the Court. As Pildes argues, “[C]onsider the aftermath of the confrontation: who won the Court-packing fight? The conventional wisdom among constitutional academics, focused narrowly on the Court itself, is that FDR lost the battle, but won the war, since the Court (assisted by 7 FDR appointments between 1937-43), acceded to the New Deal’s constitutionality. But FDR’s legislative assault on the Court destroyed his political coalition, in Congress and nationally, and ended his ability to enact major domestic policy legislation, despite his huge electoral triumph in 1936. As a Fortune magazine poll in July 1937 put it: ‘The Supreme Court struggle had cut into the President’s popularity as no other issue ever had.’ National health-care, the next major item on FDR’s agenda, faded away. The progressive domestic policy agenda did not recover until 1964. Reflecting back, FDR’s second Vice President, Henry Wallace, observed: ‘The whole New Deal really went up in smoke as a result of the Supreme Court fight.’ No rational politician, looking back at FDR’s attempt to bring the Court into line, other than through the ordinary appointments process, is likely to repeat FDR’s efforts.”
Pildes concludes in his essay that taking on the Court for its corporate free speech decision could be risky. But there is a difference (I doubt Pildes would contest this) between trying to regulate the Court directly and going after the substance of the issue considered. I personally think that the Citizens United decision deserves a constitutional amendment in response, an amendment designed to restore democracy by limiting the power of corporations. The difficulty is not that this would be perceived as attacking the Court, but that the same corporate forces probably have the power to block the amendment. Nonetheless, pursuit of the amendment is a worhtwhile political fight and even if it did not directly succeed, it could place pressure for other productive measures.
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