Lion of the Blogosphere

How FDR beat the courts

Overriding the courts should be done as a last resort and not a first resort.

Let’s remember how Franklin D. Roosevelt did it.

1. He urged that Congress not worry about constitutionality when creating new statutes. Just do what’s right.

2. Supreme Court packing legislation. It wasn’t actually passed by Congress. But the precedent is there and so it’s the logical next step for Trump, as he can point out that such a maneuver was previously done by a Democratic president. Historians believe that the threat of packing legislation scared the Supreme Court into being less confrontational.

3. FDR ultimately beat the Supreme Court by being president for longer than a majority of them had any life in them. Over the course of his four terms in office, he appointed seven justices, and unlike some of the crappy appointments by recent Republican presidents, every single one of FDR’s appointees agreed with him on the issue that was important back then, the power of the federal government to create economic regulations.

Written by Lion of the Blogosphere

February 10, 2017 at 12:32 pm

Posted in Law

40 Responses

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  1. unlike some of the crappy appointments by recent Republican presidents,

    Which crappy appointments? Alito is solid and aside from his decision on obamacare, Roberts is solid.

    E. Rekshun

    February 10, 2017 at 1:34 pm

    • ^the crappy appointment of Souter was almost 30 years ago.

      E. Rekshun

      February 10, 2017 at 1:49 pm

    • Souter.

      Lion of the Blogosphere

      February 10, 2017 at 2:27 pm

    • Kennedy? Not really recent but still pretty crappy, the court would be 7-2 if he and Souter had been better appointees.

      massivefocusedinaction

      February 10, 2017 at 3:18 pm

    • Let’s look at SC noms in the postwar era. “Good” and “bad” here refer to ideological reliability only. Consistently reliable votes are “good,” “moderates” are “bad” and consistently reliable votes for the other side are “very bad.”

      Good GOP nominations:

      Harlan (Ike, 1954)
      Rehnquist (Nixon, 1971)
      Scalia (Reagan, 1986)
      Thomas (HW, 1991)
      Alito (W, 2005)

      Probably-good GOP nominations:

      Haynsworth (Nixon, 1969, rejected)
      Carswell (Nixon, 1970, rejected)
      Bork (Reagan, 1987, rejected)
      Gorsuch (Trump, 2017, awaiting confirmation)

      Probably-bad GOP nominations:

      Ginsburg (Reagan, 1987, withdrawn); I think he’d have been a good justice, but he was probably “bad” from a SoCon perspective
      Miers (W, 2005, withdrawn)

      Bad GOP nominations:

      Whittaker (Ike, 1957)
      Stewart (Ike, 1959)
      Powell (Nixon, 1971)
      O’Connor (Reagan, 1981)
      Kennedy (Reagan, 1987)
      Roberts (W, 2005)

      Very bad GOP nominations:

      Warren (Ike, 1954)
      Blackmun (Nixon, 1970)
      Stevens (Ford, 1975)
      Souter (HW, 1990)

      Good Dem nominations:

      Goldberg (Kennedy, 1962)
      Fortas (LBJ, 1965)
      Marshall (LBJ, 1967)
      Ginsburg (Clinton, 1993)
      Breyer (Clinton, 1994)
      Sotomayor (Obama, 2009)
      Kagan (Obama, 2010)

      Probably-good Dem nominations:

      Thornberry (LBJ, 1968, withdrawn)
      Garland (Obama, 2016, no action)

      Bad Dem nominations:

      Burton (Truman, 1945)
      Vinson (Truman, 1946)
      Clark (Truman, 1949)
      Minson (Truman, 1949)
      White (Kennedy, 1962)

      The GOP is 9 for 21 in nominations, or 5 for 15 among those who actually got confirmed. Since Reagan they’re 5 for 11, or 3 for 7 on successful nominations. They’ve had 4 complete disasters (including one post-Reagan) compared to zero for the Democrats. Meanwhile the Democrats are 9 for 14 (7 for 12 on successful nominations), but 9 for 9 (7 for 7) since 1962. The GOP is 8 for 17 (4 for 11) over that same period, including 3 complete disasters.

      snorlaxwp

      February 10, 2017 at 3:52 pm

      • Since 1962, there have been named 10 reliable Democrat justices (3 appointed by Republicans), 4 true moderates (all appointed by Republicans), and 5 reliable Republicans (all appointed by Republicans, obviously).

        snorlaxwp

        February 10, 2017 at 4:00 pm

      • Correction: only 4 reliable Republicans since 1962.

        snorlaxwp

        February 10, 2017 at 4:03 pm

      • You forgot Brennan (Ike 56)

        ScarletNumber

        February 10, 2017 at 7:12 pm

      • Thanks. I knew there was another “very bad” Ike-appointee I’d missed… So correction #2, the GOP is 9 for 22 in nominations since WWII, or 5 for 16 among those who actually got confirmed, and they’ve had 5 complete disasters.

        snorlaxwp

        February 10, 2017 at 9:22 pm

  2. Interesting how the second Great Depression will coincide with FDR like actions.

    Paul Ryan's Sickly Old Lapdog

    February 10, 2017 at 1:58 pm

  3. Trump is the best of LBJ, FDR, and Andrew Jackson all neatly rolled up in one super-being.

    Paul Ryan's Sickly Old Lapdog

    February 10, 2017 at 1:59 pm

  4. Much like Moldbug’s argument against street violence, intidimating the court with court packing threats might not work without the good offices of élite consensus. On the other hand, I don’t what else to do if court rulings continue to go south.

    Regarding 3), Trump is limited by term limits (and is close to 20 years older than FDR was when he took office). He would need protegés to carry after 2024. So far, he doesn’t look like he’s up for that. Stephen Miller and Bannon are never going to be electables. Without Trump’s watchful eye on them, are Kushner and Ivanka really on the side of the good guys? Maybe not. What DJT Jr. and Eric? Those two might be the best bet.

    I was hoping Kris Kobach would have a big role in the administration to set him up for 2024, but instead he’s still stuck in state level office.

    Greg Pandatshang

    February 10, 2017 at 2:32 pm

  5. I think there are a few things to keep in mind:

    First, these judges are basically bullies. They will grab power, but only if they are confident they can get away with it. This recent decision is the trial balloon. It’s like when the bully “accidentally” steps on your foot in the lunchroom to see how you react. If you ignore it, he will escalate to something more aggressive.

    Second, there is a large element on the Left which is primarily concerned about Roe v. Wade. The possibility of Roe v. Wade being overruled will scare the hell out of them.

    Third, there is strong public support for the immigration order and everyone knows it.

    With that in mind, I think that Trump should do 2 things:

    First, have a friendly Congressman introduce a bill in the House of Representatives which would legally undermine the Courts’ authority. This law which splits the 9th circuit might be just the ticket.

    Second, he should frame this dispute to the public as Microsoft greedily putting its need for cheap labor over the security of Americans.

    I think if he does these things, there is an excellent chance the courts will back down.

    fortaleza84

    February 10, 2017 at 2:33 pm

    • This recent decision is the trial balloon. It’s like when the bully “accidentally” steps on your foot in the lunchroom to see how you react. If you ignore it, he will escalate to something more aggressive.

      Assuming Gorsuch is confirmed by the time the case reaches SCOTUS and if the high court strikes down the rulings of the lower courts might they back down if they see SCOTUS is now likely to side with Republicans most of the time?

      The Undiscovered Jew

      February 10, 2017 at 5:03 pm

      • They’ll never back down. It wasn’t anticipated, but it appears the courts’ collective backs must be broken.

        This will serve to our advantage in many ways. Everyone has already forgotten the 20 million men whose lives have been ruined by the family court system. Let us dissamble each part of the judiciary piece by piece.

        The courts have been the unnoticed enemy of the American people for the last 60 years. We thank them for finally proving that to us beyond the shadow of a doubt.

        Destroy the three pillars which hold up the other layers of the cathedral: the courts, higher education, and the Silicon Valley vermin who undermine the 99.99% on this country.

        Paul Ryan's Sickly Old Lapdog

        February 10, 2017 at 9:19 pm

  6. Keep in mind that Roosevelt had Senate majorities between 57 (1944) and 79 (1936) out of 96, plus similarly gaudy House majorities, and in practice even larger ones because many Republicans were liberal Republicans who fully supported FDR’s economic policies. And even the most conservative were still largely supportive; Bob Taft was for Social Security, housing programs and much of the rest. And he had huge electoral and popular vote mandates.

    Trump has a razor-thin majority in the Senate dependent on highly-unreliable grandstanders who largely oppose his program. Using the Gang of 8 bill as a proxy, unreliable Republicans, in order of unreliability, include McCain (Invade-Invite-#NeverTrump-AZ), Graham (Invade-Invite-#NeverTrump-Muh free trade-SC), Collins (#NeverTrump-Muh respectability-ME), Murkowski (#NeverTrump-Muh respectability-AK), Heller (#NeverTrump-Muh respectability-NV), Lamar! (Chamber of Commerce-TN), Rubio (Invade-Invite-TrooCon-FL), Flake (#NeverTrump-TrooCon-Chamber of Commerce-AZ), Hatch (Chamber of Commerce-Muh free trade-UT), Corker (Chamber of Commerce-TN) and Hoeven (Chamber of Commerce-ND).

    From the nays, I’d add Paul (TrooCon-Make-granny-die-on-the-street-KY), Portman (#NeverTrump-Muh respectability-OH), Lee (#NeverTrump-TrooCon-Muh free trade-UT), Cornyn (Muh free trade-TX), Moran (Muh free trade-KS), Boozman (Muh free trade-AR), Toomey (Chamber of Commerce-PA) and Perdue (Muh free trade-GA) to the list of unreliables. And, since then, Sasse (#NeverTrump-TrooCon-Muh free trade-NE), Tillis (Chamber of Commerce-TrooCon-NC) and Gardner (#NeverTrump-Chamber of Commerce-CO) are new additions to the list of unreliable GOP Senators.

    These are just the ones who’ve either supported Gang of 8, and/or opposed or criticized nominations, and/or were #NeverTrumpers, and/or criticized the border adjustment tax on a “muh free trade” basis. In addition to the usual suspects, Tim Scott (TrooCon-SC) attacked the travel ban, while Cruz (TrooCon-TX), McConnell himself (Muh deficit-KY) and probably some others have suggested they’d oppose new infrastructure spending.

    Using the Tillerson nomination as a proxy, the only even somewhat unreliable Democrats are Manchin (Muh reelection-WV), Heitkamp (Muh reelection-ND), Warner (Muh rich friends-VA) and King (Muh quirky independence-ME). And even Manchin still manages to be worse than McCain.

    So Trump has maybe 27 totally reliable votes, and strictly no more than 56 on anything controversial, which means he can’t beat a filibuster. The Stupid Party already wasted the one-time “reconciliation” vote on the Obamacare bill that regardless of merit requires another bill to be passed normally anyway. McCain and Hatch (Muh Senate traditions) sound like they’d oppose nuking the filibuster. It takes serious arm-twisting from the only-weakly-with-the-program McConnell, quid-pro-quos and maybe veto threats to even get to 50.

    Point is that Trump has little support for his agenda in the Senate, even the standard GOP elements, much less for starting any kind of constitutional crisis WRT judicial power (impeaching judges, court-packing or limiting courts’ jurisdiction, all of which require Senate approval to be legal).

    snorlaxwp

    February 10, 2017 at 3:01 pm

    • “Point is that Trump has little support for his agenda in the Senate, even the standard GOP elements”

      Yes, that’s a good point. What Trump needs is to put together a deal. Which unfortunately means that he
      will have to compromise with the Devil, but still. There’s strong public support for his travel ban and I think he can make it happen if he’s nimble enough.

      fortaleza84

      February 10, 2017 at 3:17 pm

    • The political establishment hates Trump, they’d destroy him if he could.
      His leverage comes from the force of having public opinion on his side.
      So they’ll try to sap his momentum so he loses his support and becomes vulnerable to attack.
      Trump will try to keep the struggle hot and in the public eye to prevent this.
      So long as his base is fanatical he has the political capital to get republicans in congress to mostly follow along.
      Not only do they fear pissing off their constituents, they are hopeful their party might continue to ride his coattails in upcoming elections to greater power.
      What will be hardest is to get them to take initiative on his behalf rather than just simply not try to sabotage him.

      Giovanni Dannato

      February 10, 2017 at 5:15 pm

  7. Gorsuch better be pro American nation state. Immigration should be the acid test. If Gorsuch has a gloabilst stance he needs to be withdrawn. Trump shouldn’t be nominating anyone to any bench who isn’t 100% anti globalist one world government.

    The Philosopher

    February 10, 2017 at 3:55 pm

  8. If Trump tries to pack the court, the news media — which instinctively repeats the most superficial possible analysis — would endlessly invoke FDR’s court packing plan as a bad plan that failed.

    Like how they immediately tried to spin Trump’s firing of his insubordinate Acting Attorney General as the “Monday Night Massacre.”

    Sometimes, you have to avoid an action only because the media will make an instant, wrong-headed comparison which — despite it’s wrongness — will be repeated endlessly.

    JA

    February 10, 2017 at 4:01 pm

    • @JA

      This is wrong. If Trump followed this advice he wouldn’t entered the race, much less be president. The right tack is to ignore the media.

      Ordinary people haven’t any idea what court packing is, and only the vaguest idea who FDR was. The media will change zero minds by invoking these historical events. Maybe even lose minds, by making themselves look like dorks.

      Lowe

      February 10, 2017 at 5:19 pm

      • The public has a very positive opinion of FDR because he is associated with Muh social security and Muh world war 2 victory.

        Associating Trump with FDR will only solidify his republican pro America support and might win him some democrats who still worship the democrat legends like FDR.

        Let the worms try. They shall fail.

        Paul Ryan's Sickly Old Lapdog

        February 10, 2017 at 9:26 pm

    • I would have to disagree. Everything Trump does will be the subject of median spin, exaggeration, and outright lies to make him look as bad as possible. If Trump personally discovered a cure for cancer, he would be blamed for putting thousands of cancer doctors out of work.

      The only way that Trump could can avoid these media attacks is if he were to jump on the globalist train.

      sabril

      February 10, 2017 at 8:48 pm

  9. Trump’s basic problem is he has never worked in government and seems to have little idea how the government actually works. He has been the president of his large family business for years, but the US government works differently. In some respects the president is far more powerful. He can order military strikes on foreign enemies. In other respects a US president is much more constrained.

    Normally the US government changes things by passing laws in Congress and the president signing them. The president can tell Congress what he wants, he can get his staff to work closely with Congress, but then he either has to sign or veto bills. It can be a long slow process. Trump likes to make quick decisions and take action, but the US government doesn’t usually function that way.

    As president of the Trump family business Trump has almost unlimited executive authority. As president of the US Trump is limited by Congress, the constitutions and the courts as to what he can do.

    Obama used a lot of executive orders to try to do things (some blocked by courts) when his party lost control of both house of Congress. Trump’s party has control of both houses of Congress, but I have not seen much evidence of Trump trying to direct Congress on his agenda. That is a lot of work. Maybe he just doesn’t have to staff to do it yet, but he seems to be letting the Congressional Republicans drive that agenda and they are getting bogged down quickly. Basically, the Congressional Republicans have been promising their base herds of unicorns if they could get control of the executive and legislative branches. Now that they have control, they are slowing coming to the realization that unicorns are mythical.

    Maybe by 2018 Trump will have figured out how the government works.

    mikeca

    February 10, 2017 at 4:03 pm

    • How the “U.S. government works” is EXACTLY THE PROBLEM. To then fault Trump for failing to imitate the problem in the way that he works as U.S. President is absurd.

      “White” male mimesis of the Jew is quite the pathology.

      thordaddy

      February 10, 2017 at 5:49 pm

    • It’s a good start, but the Left isn’t melting down as badly as I expected them too. Burnout?

      We need more deportations.

      Otis the Sweaty

      February 11, 2017 at 9:30 pm

  10. Lion,

    Can I get a quick front page link to my article about proles?

    https://pragmaticallydistributed.wordpress.com/2017/02/07/how-comte-overthrew-marx-part-ii/

    The Undiscovered Jew

    February 10, 2017 at 5:03 pm

    • Wow, that’s an extremely long blog post. You must be trying to be like Mencius Moldbug, who was in the news today.

      Mencius seems to have made something for himself while I’m pretty much ignored, so maybe you’re on the right track. And I was never even sure if Mencius was serious about what he wrote or if it was just a big joke.

      Lion of the Blogosphere

      February 10, 2017 at 5:13 pm

      • For alt-internet types, saying “I read Moldbug.” is like normal people saying “I read War and Peace.” or “I read Moby Dick.”

        Giovanni Dannato

        February 10, 2017 at 5:18 pm

      • You still have a chance to become the most prominent dissident right Star Trek analyst.

        Gozo

        February 10, 2017 at 5:27 pm

      • Most of Moldbug’s writing was pretentious, and it did sound like he was pulling your leg. Unlike LotB who is down-to-earth.

        Greg Cochran is similar to LotB, though he is sometimes insulting, both in his blog posts and his comments. If you want examples of long but readable posts, you could look at the archives at Westhunter.

        But if you wants to sound like a pedantic windbag, by all means imitate Moldbug, or Heartiste.

        Lowe

        February 10, 2017 at 5:37 pm

      • Wow, that’s an extremely long blog post. You must be trying to be like Mencius Moldbug, who was in the news today.

        I would not say I’m imitating him so much as I’ve taken in his analysis and integrated it into my Hamiltonian politics.

        What did he do today?

        But if you wants to sound like a pedantic windbag, by all means imitate Moldbug, or Heartiste.

        Have you read my article?

        How long an article is doesn’t indicate whether it was pretentious –

        https://pragmaticallydistributed.wordpress.com/2017/02/07/how-comte-overthrew-marx-part-ii/

        The Undiscovered Jew

        February 10, 2017 at 6:01 pm

      • Mencius seems to have made something for himself while I’m pretty much ignored, so maybe you’re on the right track. And I was never even sure if Mencius was serious about what he wrote or if it was just a big joke.

        I got quite a bit substance out of his harangues. His works are no small contribution to my article.

        The Undiscovered Jew

        February 10, 2017 at 6:03 pm

    • For God’s sake, Wigan not Wiggins

      dried peanuts

      February 10, 2017 at 6:07 pm

  11. trump should nominate 20 white redneck plumber/electrician types to the scotus…

    RS

    February 10, 2017 at 5:09 pm


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