And in 1877, Republicans installed their presidential candidate, Rutherford B. Hayes, into the White House after he had lost both the popular vote and the Electoral College vote to Democrat Samuel Tilden, a case Trump may have been referring to in a press conference on September 16, saying, "at a certain point, it goes to Congress." (This is the 12th Amendment nightmare I wrote about in March and Greg Palast has recently pursued.)
Republicans have also reduced the size of the Supreme Court specifically to deny a Democratic president a nominee before. (And, of course, there's the sordid tale of what they did to Merrick Garland.) Democrats can easily change the composition of the court with a simple majority if they control the House and Senate after the election and choose to end the slavery-era filibuster rule.
The closest any Democrat has ever come to this sort of thing was in 1937 when President Franklin D. Roosevelt threatened to "pack" the court as Republicans had done 71 years earlier. (The threat and widespread public opinion in its favor worked, forcing the court to change its position on the New Deal, so the issue never came to a vote in Congress.)
Pushing the boundaries even further, over the course of now-Chief Justice John Roberts' career working for President Ronald Reagan, George H.W. Bush and George W. Bush, he proposed a nuclear option that Republican lawmakers could use to legislatively overturn Brown v. Board and Roe v. Wade whether the Supreme Court liked it or not. Roberts' plan was never implemented, but it's still a long-shot option.
McConnell knows the first lesson of power politics: when representing only a minority, you must ruthlessly grab every bit of power you can, every time you can.
Republicans in the U.S. Senate represent about 15 million fewer Americans than do Democrats. The last Republican president initially elected with a majority vote from the American people was George H.W. Bush, 32 years ago in 1988; George W. Bush lost by about a half-million votes, and Trump lost by almost 3 million. In the U.S. House in 2018, 9 million more Americans voted for a Democrat than a Republican, a margin (8.6 percent) far larger than their actual governing majority.
Nonetheless, Republicans tenaciously hang onto power and do whatever it takes to both hold and increase that power at every opportunity.
Democrats must learn from this history and consider all of these options if they win the White House and the Senate, and hold the House this November. Being elected with solid majorities will enhance their credibility when they seize and wield that power, so it's doubly important now to strike when the opportunity arises.
Here's a deeper dive into the background, largely drawn from my books The Hidden History of the Supreme Court and the Betrayal of America and The Hidden History of the War on Voting.
Packing the Court in 1801
Thomas Jefferson beat John Adams in the election of 1800, and so, during the lame-duck session of 1801, Adams' Federalists (the conservative party at that time) passed the Judiciary Act of 1801 to cut the size of the Supreme Court from six members to five, purely to deny Jefferson an opportunity to make an appointment. (Jefferson's Democratic-Republicans—today's Democratic Party—increased the number of members of the court to seven in 1802.)
The law also created 16 new federal judgeships, which Adams sought to quickly fill before Jefferson took office in March; that created a mess that led to the Marbury v. Madison decision, which authorized the court to strike down laws passed by Congress.
Packing the Court in 1866/1869
In 1866, Republicans in the House and Senate passed a law to reduce the number of justices on the Supreme Court from 10 to 7 to deny Democratic President Andrew Johnson an opportunity to fill a seat opened up with the 1865 death of Associate Justice John Catron. Johnson was furious, but there was nothing he could do.
Three years later, with Johnson out of the White House and Republican President Ulysses Grant safely in charge, they passed the Judiciary Act of 1869 that raised the number of justices up to nine, where it has stood till today.
Packing the Court in 1937
During FDR's presidency, four of the Supreme Court's justices, Pierce Butler, James Clark McReynolds, George Sutherland, and Willis Van Devanter, were collectively known as the Four Horsemen. They were invariably joined by one of the other justices, particularly Justice Owen Roberts, to strike down New Deal legislation that attempted to address unemployment and poverty, no matter how popular it was.
For the preceding decades during the Lochner era, the court had struck down dozens of state laws protecting workers, including women and children.
In 1935, the Supreme Court ruled that both the Agricultural Adjustment Act and the National Industrial Recovery Act were unconstitutional, gutting Roosevelt's New Deal legislation.
The Agricultural Adjustment Act had passed in 1933 with 76 percent of the House of Representatives voting for it. The bill passed the Senate, also with 76 percent of the Senate voting for it.
Historian William Leuchtenburg wrote for Smithsonian magazine that after the Agricultural Adjustment Act was struck down, "Many farmers were incensed. On the night following [Justice Owen] Roberts' opinion, a passerby in Ames, Iowa, discovered life-size effigies of the six majority opinion justices hanged by the side of a road."
The National Industrial Recovery Act had likewise passed with 71 percent of the House voting for it and 81 percent of senators voting for it.
When the Supreme Court used its power of judicial review to overturn these laws, it wasn't viewed just as an assault on FDR's New Deal. It was, in the opinion of many Americans (and FDR himself), an assault on the very basis of our democratic republic.
Then, shortly before Roosevelt was reelected in 1936, the court struck down a New York state law that established a minimum wage for women and children in Morehead v. New York ex rel. Tipaldo.
The pendulum of popular opinion swung hard against the court almost overnight. One Republican newspaper in New York declared its opposition to the ruling: "The law that would jail any laundryman for having an underfed horse should jail him for having an underfed girl employee."
And as historian David B. Woolner, author of The Last 100 Days: FDR at War and at Peace, noted, "Over… 13 months, the court struck down more pieces of legislation than at any other time in U.S. history."
In 1937, the National Labor Relations Act and the Social Security Act (both passed in 1935) were on their way to the court. Considering how the Four Horsemen had ruled during FDR's first term, Roosevelt knew that he needed to do something or risk losing both pieces of legislation.
With the New Deal on the line, Roosevelt went on the attack. On February 5, 1937, just months after his landslide reelection, he announced his plan. He asked Congress for the authority to appoint one justice for each justice over 70 who would not retire.
In 1937, the average life expectancy for men in the United States was only 58 years old. The average age of the Supreme Court justices at the time was 71 years old, and six of the justices were age 70 or older. A book mocking the court, called The Nine Old Men, "was rapidly moving up the bestseller lists," as Leuchtenburg wrote.
FDR directly called into question the "capacity of the judges themselves" to dispose of the growing number of cases facing federal courts. The United States' population had increased nearly 70 percent between 1900 and 1936, and the number of cases facing federal court dockets had exploded. Citizens were waiting longer and longer to go in front of older and older judges.
Roosevelt's plan would have immediately given him six appointments to the Supreme Court and up to 44 appointments for federal lower courts. Roosevelt argued that "[a] constant and systematic addition of younger blood will vitalize the courts."
On March 9, 1937, Roosevelt told the nation that the court was ruling not just against himself and Congress, but against the will of the American people.
"The Courts," Roosevelt told the nation, "have cast doubts on the ability of the elected Congress to protect us against catastrophe by meeting squarely our modern social and economic conditions."
Roosevelt's critics were aghast at his plans. They claimed he was trying the "pack the court" with justices who would simply be his yes men.
Reacting to his critics, Roosevelt cut to the heart of the matter:
"[I]f by that phrase the charge is made… that I will appoint Justices who will not undertake to override the judgment of the Congress on legislative policy, that I will appoint Justices who will act as Justices and not as legislators—if the appointment of such Justices can be called 'packing the Courts,' then I say that I and with me the vast majority of the American people favor doing just that thing—now."
Congress never voted on the plan. It's unclear whether it would have succeeded, or if a more moderate plan that would have given him only two or three justices might have passed more easily.
Instead, on March 29, 1937, a Washington state minimum wage law came before the Supreme Court in West Coast Hotel Co. v. Parrish. The law in question was nearly identical to the New York state law that had come before the court a year earlier when it had outlawed minimum wage laws as being unconstitutional.
But this time, Justice Owen Roberts abandoned the Four Horsemen to uphold Washington's minimum wage in a 5-4 decision. In a further series of 5-4 decisions two weeks later, the court upheld the National Labor Relations Act as constitutional. The nation was astonished.
Labor Secretary Frances Perkins was close friends with Justice Roberts' wife, Elizabeth. When the decisions came down, according to Kirstin Downey's biography of Perkins, "she rushed that afternoon to Roberts' home" and "threw her arms around the man and hugged him."
"Owen, I am so proud of you," Perkins told the Supreme Court justice. "A man of your standing and intelligence who is not afraid to change his mind!"
Downey wrote of how Roberts was embarrassed by the affection but also very pleased. "Really, do you think so?" he replied to Perkins.
Less than two months later, the court declared that Social Security was constitutional.
The New Deal had been saved from execution on the Supreme Court's bench. Social Security had been salvaged, and the National Labor Relations Act gave labor and unions a lifeline after generations of fighting to stay afloat.
Roberts' about-face in West Coast Hotel case was referred to at the time as "the switch in time that saved nine," rendering FDR's proposal unnecessary.
Packing the Senate
In 1864, Abraham Lincoln was looking at the potential future composition of the U.S. Supreme Court after the war, concerned that Democrats might end up controlling the judicial body.
Back then, it took roughly 125,000 citizens in a territory to qualify it for statehood, and the Nevada Territory only had 40,000 residents, but almost all were GOP-aligned. So, ignoring the 125,000-person requirement (it was more a matter of policy than law), Lincoln proposed statehood for Nevada and Congress approved it, adding two new GOP senators.
After the Civil War, as Southern (and Democratic-controlled) states were reintegrating into the Union, Republican President Ulysses Grant was worried that Democrats might end up controlling the Senate, and so in 1876 Grant and Republicans in Congress added Colorado—with fewer than 40,000 residents—as a new state, gaining two more GOP senators.
Democrats were rising in power again when Democrat Grover Cleveland won the White House in 1884 and won the popular vote (but lost the Electoral College) in 1888. Popular-vote loser Republican President Benjamin Harrison, in 1889, successfully proposed the Dakota Territory—which then had 134,000 residents—be split into two territories, North Dakota (pop. 36,000) and South Dakota (pop. 98,000), and each of them become states with two senators each.
Thus, in 25 years, the GOP added eight senators, largely cementing their control of the Senate until the Great Depression; from Lincoln's inauguration in 1861 until FDR's inauguration in 1933, Democrats controlled the Senate for only 10 years.
Roberts' Nuclear Option to Get Around the Supreme Court
The year 1981 was a big one for court-stripping—or, as it's sometimes called, jurisdiction-stripping. No fewer than 30 pieces of legislationwere introduced into the U.S. House of Representatives by Republican congressmen that included court-stripping provisions. It was a huge topic of discussion and legal activity among Republicans.
And a young lawyer working in Ronald Reagan's Justice Department, an up-and-comer named John Roberts, was hot on the trail.
Court-stripping is based on the idea that Congress has the power, under the Constitution, to pass laws that include provisions that specifically prevent (or strip the jurisdiction of) the Supreme Court (or any other federal court, if stipulated) from ruling on that particular law or issue's constitutionality.
It's based on Article III, Section 2, of the Constitution, which says, "[T]he [S]upreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make."
In 1954, the Supreme Court ruled, in Brown v. Board, that states had to racially integrate their schools. Southern states promised "massive resistance" in defiance, and entire school districts were shut down; many Southern states opened private all-white "segregation academies" such as the one Mississippi Senator Cindy Hyde-Smith famously went to and sent her daughter to.
Brown provoked a mini-industry among right-wing white racists: Fred Koch's beloved John Birch Society was putting up "Impeach Earl Warren" billboards across the nation and publishing articles and pamphlets tying civil rights activists to communism; hundreds of all-white private schools opened; and conservative scholars of the Supreme Court and the Constitution searched through old books and debates from the founding era to that day looking for rationales to overturn the decision.
Other than years of disruption to public education and a redoubled effort by conservatives to keep public schools funded with local property taxes (so that poor and/or Black schools would continue to turn out poorly educated students), not a great deal came of the opposition to Brown v. Board.
But defying the Court became a much bigger business in 1973, when the court in Roe v. Wade ruled that women have the right, at least in the first trimester of a pregnancy, to choose to have an abortion pretty much anywhere in the country, for any reason.
Reagan kicked off his 1980 presidential campaign with a speech about education and states' rights to a predominantly white crowd near Philadelphia, Mississippi, where three civil rights activists had been murdered in 1964. Willing to say and do whatever it took to take the White House, Reagan was the perfect vessel for a white supremacy message opposing forced integration, welfare for Black people, and abortion for white women.
Reagan's administration brought together a constellation of conservative white men to change the face of America. Ted Olson, who later argued Bush v. Gore before the U.S. Supreme Court, led the Justice Department's Office of Legal Counsel. As an assistant attorney general, Olson worked with counselor to the attorney general Ken Starr (appointed to that job in 1981), who was later (1989-1993) George H.W. Bush's solicitor general. Other new faces Reagan hired included Samuel Alito and John Roberts.
Starr tasked Roberts, a staunchly antiabortion Catholic, with reviewing the entire history of the U.S. Supreme Court for cases that suggested a legislative or administrative way to overturn Roe v. Wade and Brown v. Board.
Roberts wrote an extraordinary 27-page document that's largely unknown, in the form of a memo on the letterhead of the Office of the Attorney General, to Ken Starr, signed by Roberts as special assistant to the attorney general. It is titled, "Proposals to Divest the Supreme Court of Appellate Jurisdiction: An Analysis in Light of Recent Developments."
Roberts wrote that he had found "over twenty bills [pending in Congress] which would divest the Supreme Court (and, in most instances, lower federal courts as well) of jurisdiction to hear certain types of controversies, ranging from school prayer and desegregation cases to abortion cases."
What Roberts and his researchers had discovered was substantial.
Court-stripping is based on the exceptions clause of Article III, Section 2, of the Constitution, which stipulates that the courts exist "with such Exceptions, and under such Regulations as the Congress shall make."
Roberts noted in his memo that "[t]he exceptions clause by its terms contains no limit… This clear and unequivocal language is the strongest argument in favor of congressional power and the inevitable stumbling block for those would read the clause in a more restricted fashion."
Roberts was looking at the nuclear option. If he could build a strong case for Congress passing a law against abortion or desegregation, and persuade Congress to use the exceptions clause to render the courts moot, then this could be the magic bullet to restore segregation and recriminalize abortion.
Roberts concluded with a 1968 comment from Sam Ervin of North Carolina, one of the Senate's most outspoken opponents of racial integration and abortion.
He wrote, "As Senator Ervin noted during hearings on the exceptions clause, 'I don't believe that the Founding Fathers could have found any simpler words or plainer words in the English language to say what they said, which was that the appellate jurisdiction of the Supreme Court is dependent entirely upon the will of Congress.'"
Roberts agreed: "[W]e are not considering a constitutional clause that is by its nature indeterminate and incapable of precise or fixed meaning, such as the due process clause or the prohibition on unreasonable searches and seizures."
This was clearly the original intent, Roberts argued, because "the exceptions clause 'was not debated' by the Committee of Detail which drafted it or the whole Convention."
Citing Federalist, no. 81, Roberts wrote, "Hamilton noted that the clause would enable 'the government to modify [appellate jurisdiction] in such a manner as will best answer the ends of public justice and security,' and that appellate jurisdiction was 'subject to any exceptions and regulations which may be thought advisable.'"
Section III of Roberts' screed on court-stripping dives deep into Supreme Court decisions to find rulings explicitly saying that Congress can regulate the Supreme Court and block the court from ruling on particular issues.
Beginning with the 1869 decision Ex parte McCardle, Roberts wrote, "A unanimous Court upheld the power of Congress to divest the Supreme Court of jurisdiction. The Court clearly based its decision on Congress' power under the exceptions clause. Chief Justice Chase began the opinion by recognizing that the appellate jurisdiction of the Court 'is conferred "with such exceptions and under such regulations as Congress shall make."'"
Quoting Chase again, Roberts added his own emphasis: "We are not at liberty to inquire into the motives of the legislature. We can only examine into its power under the Constitution; and the power to make exceptions to the appellate jurisdiction of this Court is given by express words [underline Roberts']."
He continued his historical exposé of court-stripping with another 1869 decision, Ex parte Yerger, and then United States v. Klein (1872), Wiscart v. Dauchy (1796), Durousseau v. United States (1810), Daniels v. Railroad (1865), and The Francis Wright (1881).
In The Francis Wright, Roberts found that Chief Justice Morrison R. Waite (whose court oversaw the infamous 1886 "corporate personhood" Santa Clara County v. Southern Pacific Railroad case) wrote for a unanimous court, quoting him as follows: "Not only may whole classes of cases be kept out of the jurisdiction altogether, but particular classes of questions may be subjected to re-examination and review, while others are not."
Each case strengthened the idea that Congress could simply pass a law, without even needing a supermajority, that barred the Supreme Court from ruling on a set of issues—like Reagan's hot-button issues of school desegregation and abortion.
Moving toward late-19th-century decisions, Roberts quoted the court in Colorado Central Consolidated Mining Co. v. Turck (1893): "[I]t has been held in an uninterrupted series of decisions that this Court exercises appellate jurisdiction only in accordance with the acts of Congress upon the subject."
Roberts, in his own voice, added, "Again, it bears emphasis that the basis for this theory is the implicit exercise by Congress of its exceptions power when it makes a limited grant of jurisdiction."
Still building his case, Roberts jumped into 20th-century rulings, starting with National Mutual Insurance Co. v. Tidewater Transfer Co. (1948). Writing for the majority, Justice Felix Frankfurter noted in the decision, "Congress need not give this Court any appellate power; it may withdraw appellate jurisdiction once conferred and it may do so even while a case is sub judice."
About the 1944 Yakus v. United States case, Roberts wrote, "Justice Rutledge noted… that 'Congress has plenary power to confer or withhold appellate jurisdiction.'"
Regarding Flast v. Cohen (1968), Roberts quoted from Justice William O. Douglas, who wrote, "[A]s respects our appellate jurisdiction, Congress may largely fashion it as Congress desires by reason of the express provisions of Section 2, Article III. See Ex parte McCardle."
In Section IV of his memo, Roberts again covered the span from the framing of the Constitution to the time of his writing the memo, quoting another dozen or so cases that referenced, less directly, the power of Congress to exempt the Court from certain issues or decisions.
Roberts also noted that the original Judiciary Act of 1789 (which created the federal court system) also refers to Congress' power of exception.
Time to Play Hardball
Both demographics and popular political opinion are moving against the Republican Party, and Republican politicians know it. Democrats should use this moment—if we can succeed in fighting back the GOP fascist tide—to use historical precedent to reconfigure our government so it represents the will of a majority of Americans.
No more Mr. Nice Guy.