Even as Congress puts the finishing touches on a sweeping overhaul to the nation’s health care system, another hurdle may be looming for President Obama’s signature domestic issue: The Supreme Court.
So far, 14 state attorneys general have filed a constitutional challenge to the law that was signed by the president on Tuesday. If history is any guide, the stage now could be set for a lengthy battle between the executive and judiciary branches not seen since 1937.
In 1936, President Franklin D. Roosevelt won reelection in one of the biggest landslides in American history. Over sixty percent of the popular vote and nearly the entire Electoral College went to Roosevelt, who was also presiding alongside huge Democratic majorities in both the House and the Senate at the time.
“FDR was really at the pinnacle of his power in 1937,” said Jeff Shesol, a former President Clinton speechwriter and the author of Supreme Power: Franklin Roosevelt vs. the Supreme Court, which was published earlier this week.
“But throughout his entire first term,” Shesol said, “FDR kept hitting the obstacle of the Supreme Court.”
That obstacle – a 5-4 conservative majority on the Court – had struck down a host of early New Deal laws, including the Recovery Act and the Agricultural Act, leaving Roosevelt and many progressives fearful that the Court was about to take aim at Social Security and newly established labor rights.
Roosevelt responded with a cunning plan to pack the Court with six additional justices who, critics at the time claimed, would simply be ‘yes men’ for the president’s legislative goals.
“It was the biggest political mistake FDR ever made,” Shesol said. “But he really felt that if he couldn’t find a way through or around the Supreme Court, there would be widespread economic collapse and violent revolution in the country.”
Roosevelt later succeeded in passing much of his agenda because the Court began to reverse itself, Shesol said, and eventually FDR was able to appoint justices more in line with his view of the constitution.
But the political fallout from the court packing plan divided his party and much of the nation.
“It will always be a blemish on the legacy of FDR,” Shesol said.
As for today, Shesol said President Obama should learn from the legacy of FDR and choose his battles wisely with the Court, especially following the recent dust up over the Citizens United decision on campaign finance.
“This has been a running argument in American history and there are certain moments when it really flares up in a dramatic way,” Shesol said. “But the last time the argument was as shrill as it is today was in the 1930’s.”
Justin Scuiletti contributed to this report.