Thread by @billscher

In my latest for @monthly, which talks of the value in threatening to court-pack (but not actually doing it), I delve into the debate over the impact of FDR's court-packing attempt. I include some details you may not know...

washingtonmonthly.com/2021/04/20/sho…

@monthly ...Some argue FDR's court-packing bill instigated the "switch in time that saved nine," as the Court flipped from anti-New Deal to pro-New Deal rulings after that.

But the "switch" happened before the bill's introduction...

...FDR announced his bill on Feb. 5, 1937 presidency.ucsb.edu/documents/mess…

But as Justice Owen Roberts explained in a 1945 memo academic.brooklyn.cuny.edu/history/johnso… he cast the "switch" vote on Dec. 19, 1936, so FDR's announcement could not have pressured him...

...Now that's not the end of the debate. Those who argue Roberts switched under political pressure (the "externalists") point to *speculation* in the media that a court-packing bill was coming, on the heels of FDR's landslide 1936 re-election...

...and Roberts himself later said that the court-packing attempt caused "tremendous strain and threat to the existing Court, of which I was fully conscious"... google.com/books/edition/…

...however, the "internalists" argue that there were Court rulings during FDR's first term which showed evolution in some of the Justices' thinking, and so, the "switch" was primarily the culmination of a natural intellectual process and not political appeasement...

...Roberts never admitted he switched under pressure, even though he struck down NY minimum wage law in June '36--saying employers & employees have freedom to contract--then upheld a similar WA law in his Dec. '36 vote...

...The "switch" vote did not become *public* until *after* FDR's proposal was made, which is why to folks at the time, it looked like the Court was reacting to the president's bill...

...But Roberts claims he wasn't asked in the NY case to overturn a freedom to contract/anti-minimum wage precedent set in '23 (Adkins), though he was prepared to do so. In the WA case, he was and he did...

...Roberts said he could have written a concurring opinion in the NY clarifying his views, and didn't give a reason why he neglected to. (FDR biographer Kenneth Davis, in "FDR Into the Storm, 1937-1940" called Roberts' defense "disingenuous")...

...FDR took credit for the switch: "The Court began to interpret the Constitution instead of torturing it. It was still the same Court, with the same justices. No new appointments had been made. And yet, beginning shortly after the message of February 5, 1937, what a change!”...

...But to credit FDR with strategic genius requires overlooking that the bill was unpopular, he ignored counsel to pull it & declare victory after the "switch" and he alienated conservative Ds so much that they put the kibosh on further New Deal bills...

...in other words, FDR may have "lost the battle, but won the war" for the Court, but in the process, he lost the war for the rest of his agenda...

...So we know FDR shouldn't have stubbornly persisted to pack the Court after the switch, but whether the speculation of imminent court-packing was the reason for the switch is tougher to answer definitively...

You can read a deep dive into the debate in the 10/05 issue of American Historical Review academic.oup.com/ahr/issue/110/4

The externalist case: academic.oup.com/ahr/article/11…

The internalist case: academic.oup.com/ahr/article/11…

The there-are-elements-of-both case: academic.oup.com/ahr/article/11…

...I think it's fair to say it is likely the court-packing speculation played some role in Roberts' decision-making, and as @dblock94 noted here in @monthly washingtonmonthly.com/2020/09/26/pac… there are other examples of the Court reacting to implicit threats ...

...which is why my overall takeaway on court-packing is "the threat is stronger than the execution.”

More here in @monthly : washingtonmonthly.com/2021/04/20/sho…