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Just catching up to @kewhittington's piece on Court packing. I’m a long-time fan of Keith’s work, but I’m struck by how one-sided his historical account here is https://twitter.com/kewhittington/status/1318907255971000321
@kewhittington tells us about the late 19th C Populists “threatening radical reform of the Court,” but doesn’t tell us that the Court’s composition looked like this
Or that the justices and their supporters were giving speeches like this
When we get to FDR, @kewhittington tells us that “extremists in Congress began talking about packing” the Court, but devotes only half a sentence to the unprecedented judicial obstruction of nat’l policy agenda that led to those proposals.
@kewhittington literally wrote the book on judicial review of federal statutes, and so knows full well how outside the norm the Court’s behavior in 1935-36 was
https://kansaspress.ku.edu/978-0-7006-2779-0.html
https://kansaspress.ku.edu/978-0-7006-2779-0.html
FDR legit saw the Court as a threat to the survival of democratic capitalism, and I don’t see how we can judge his proposed reforms as extremist without attending to the judicial behavior that prompted them
Likewise, I don’t know what Court reform Biden will propose, but I do know that we won’t be able to fairly evaluate it without attending to the fact that the Court is engaged in an open assault on the voting rights of Democratic-leaning constituencies
