Thread by @jedshug

This @jbouie column for court-packing has 2 big political problems and a significant historical error:
1) He closes w/ the debunked assumption that FDR's court-packing plan cowed the Court into upholding the New Deal.
No. Owen Roberts switched in 1936.
1/
nyti.ms/31A96IA

@jbouie 2/ @jbouie:
"FDR came to court-packing as the solution... He was forced to abandon the plan, but it had the desired effect: The Court allowed him...to govern."
No.
For 20+ years, historians have documented that Roberts switched b/c of 1936 landslide, before FDR announced plan.

@jbouie 3/ See, e.g., Barry Cushman, "Rethinking the New Deal Court" (1998).
Marian C. McKenna, "Franklin Roosevelt and the Great Constitutional War: The Court-packing Crisis of 1937" (2002)
Neal Devins, book review of Leuchtenberg, 1996:
scholarship.law.wm.edu/cgi/viewconten…

4/ The lesson from FDR’s Court-Packing plan is the opposite of @jbouie’s :
Elections have consequences (like the 1936 Dem landslide on Roberts’s switch), but court-packing overreach can lead to backlash (like the ‘38 midterms, when Dems lost many seats for a mix of reasons).

5/ Roberts wrote in late ‘36 that he was swayed by the landslide election and voted in conference in Dec 1936 to uphold state minimum wage laws in West Coast Hotel v Parrish, overturning Adkins.
Major switch before FDR announced packing plan.

6/ Some like William Leuchtenberg have argued that Roberts and Hughes May have been persuaded to go further in upholding FDR’s New Deal than they would have w/o packing threat. But this claim, though plausible, is highly speculative. The documents show a major switch w/o threats.

7/ But when @jbouie refers to FDR’s packing plan’s “desired effect,” he leaves out this fact:
In 1938, Dems lost 72 House seats and 7 Senate seats.

And that’s the best argument against @jbouie’s court-packing campaign:
It is more likely to get Trump and a GOP Senate re-elected.

@jbouie 8/ (There was also a major economic downturn in 1938, which probably was a bigger drag on Congressional Democrats. Nevertheless, it's hard to argue that the court-packing plan was a political winner after it polled badly in rudimentary polls, & his own Dem Congress rejected it).

@jbouie 9/ So @jbouie's 2d mistake is historical/political:
Court-packing is likely to lose votes in battleground states. Just look at Wisconsin's recent judicial election.
I talked about it on @NPREmbedded w/ @kellymcevers in August:
npr.org/templates/tran…

@jbouie @NPREmbedded @kellymcevers 10/@jbouie's 3d error is political/practical:
You'd need more than 50 or 51 Dem Senators to pass court-packing, b/c red state Dems won't support it (for valid reasons).
It's uphill to 50 already. A court-packing campaign won't get you to 55, but it could lose the Senate entirely.