Georgia, like many other Southern states, went through a political realignment in the decades following the Civil Rights Movement as white Southerners shifted loyalties from Democrats to Republicans. The state’s first Republican governor since Reconstruction, Sonny Perdue, was not elected until 2002. Yet Georgia’s been governed by Republicans ever since Perdue took office.
One legacy of the state’s many decades under Democratic governors is that a majority of the state’s supreme court justices — four of seven — were appointed by a Democrat. Gov. Nathan Deal (R) wants to change that, and he believes that he can do so by adding two additional seats to his state’s highest court. That would give Republicans a 5–4 majority once Deal fills the two new vacancies created by his proposal — assuming, of course, that the proposal becomes law in the first place.
Court-packing of this sort has been proposed before in Georgia. A handful of Republican lawmakers introduced a bill in 2007 seeking to increase the number of justices on the state supreme court to 13. In 2010, a similar bill sought to to increase the number of seats up to nine. Neither bill, however, made it very far in the legislature.
It was also proposed at the national level, although the most famous example of a court-packing plan drives home the extraordinary nature of Deal’s proposal. President Franklin Roosevelt offered a court-packing proposal under the most compelling possible circumstances a president could cite to justify such a proposal. Nevertheless, it is far from clear that New Deal Era lawmakers would have been willing to enact Roosevelt’s plan even if the terrible conditions that sparked the proposal had remained unchanged.
In 1937, Americans lived under a rogue Supreme Court. As I explain in my book, Injustices: The Supreme Court’s History of Comforting the Comfortable and Afflicting the Afflicted, early twentieth century justices struck down child labor laws and hobbled unions. They declared the minimum wage unconstitutional while permitting states to sterilize women against their will.
The decisions of this era were also profoundly arbitrary, with little grounding in either the Constitution or even other recent Supreme Court decisions. The Court permitted laws limiting the number of hours worked by miners, but did not allow similar limits on the hours worked by bakers. They forbade many labor laws protecting men, but permitted similar laws protecting women. Often, the only real test of whether a law was declared unconstitutional was the idiosyncratic whims of five justices on the Supreme Court.
If there was a pattern to the Court’s decisions in this era, it was that a majority of the Supreme Court was very conservative and skeptical of the measures that progressives of both political parties offered to lift up the millions of coal miners, factory workers, railroad hands and others who had not fared well in the decades following the Industrial Revolution. This meant that the Court was hostile to many of Roosevelt’s efforts to mitigate the effects of the Great Depression. It also meant that Roosevelt feared that the Court may strike down landmark New Deal programs such as Social Security.
His response was a proposal to add one new member to the Court for each justice over the age of 70 who did not retire after six months — a proposal that would have effectively allowed Roosevelt to appoint six new justices. If the justices wouldn’t give up their self-assigned power to veto any law that a majority of the Court disapproved of, then Roosevelt would dilute his adversaries votes on the Court into irrelevance.
FDR’s court-packing plan was not popular, and it exposed cracks within the New Deal coalition that eventually helped tear much of it apart. In the South, down-the-line conservatives had long competed with racist populists — who believed in using government to lift up poor white people even as they kept their feet on the necks of African Americans — for control of the Democratic Party in the South. The Court-packing plan emboldened Southern conservatives who feared it would endanger Jim Crow just as surely as it would prop up the New Deal. As North Carolina Senator Josiah Bailey wrote a friend shortly after the court-packing plan was announced, Roosevelt “is determined to get the Negro vote, and I do not have to tell you what this means.”
What it meant was that a liberal Supreme Court could abolish segregation.
Other lawmakers, however, offered much more persuasive arguments against Roosevelt’s proposal. Senator Hiram Johnson, a progressive Republican and New Deal supporter, warned that “we’re on the road to Fascism” the day after FDR announced the plan. Justice Louis Brandeis, a liberal who typically opposed the Court’s efforts to hobble lawmakers, offered Roosevelt a distinctly practical criticism. “Tell your President,” Brandeis told the envoy the White House sent to warn him about the proposal, that “he has made a great mistake. All he had to do was wait a little while.”
What Brandeis knew, and what Roosevelt did not, is that conservative Justice Owen Roberts had already voted in one of the Court’s secret conferences to overrule several of the Court’s most aggressively anti-democratic decisions. That meant that pending challenges to the core of the New Deal would fail, and Roosevelt’s proposal would prove unnecessary. After Justice Willis Van Devanter, another conservative, announced his retirement that spring, Roosevelt made the first of several appointments that locked in his understanding that America should be governed by elected officials and not by judges. The court-packing plan died.
If Roberts had not flipped his vote, and if Van Devanter had not given justices tolerant of the New Deal an effective majority on the Court with his retirement, then this showdown between the president and the judiciary would have forced the nation to answer a very difficult question: at what point does the Supreme Court become such a malign force, at what point has it disregarded the Constitution so completely, that it is better to destroy a co-equal branch of government’s legitimacy than to allow it to continue its rogue behavior? Court-packing eliminates any pretense that the judiciary is independent of politics, and it flags each of the court’s new members as beneficiaries of a regime intended only to prop up the policies of a sitting executive.
There may very well be a point where such an extraordinarily remedy becomes necessary, but Gov. Deal has not even attempted to make the case that the Georgia Supreme Court has committed such gross misconduct that it is better to hit the judiciary’s killswitch than to allow that court to proceed with its current membership. To the contrary, Deal defends his own court-packing plan by arguing that “as our state continues to grow, the demands of the court also grow” — an argument that closely resembles disingenuous claims by President Roosevelt that court-packing would alleviate the burden carried by overworked and elderly members of the Supreme Court.
There are also a number of proposals on the table in Georgia, ranging from giving the state supreme court more control over which cases it hears to providing each justices with more law clerks, that would alleviate the demands currently faced by the court’s justices without requiring a resort to court-packing.
Additionally, Deal has good reason to heed the warning Justice Brandeis gave Roosevelt when he said that the White House should have waited. According to the Atlanta Journal-Constitution, two current members of the Georgia Supreme Court, Chief Justice Hugh Thompson and Presiding Justice Harris Hines, plan to retire during Deal’s tenure in office. Both Thompson and Hines were appointed by Democratic Gov. Zell Miller.
Gov. Deal, in other words, can have a Republican majority on his state supreme court without having to deal a potentially fatal blow to the court’s legitimacy. He only, as Brandeis said, has to “wait a little while.”