By Jennifer Nicoll Victor, Ph.D., George Mason University
When thinking about the history of the Supreme Court and its politics in the United States, three distinct periods come to mind. These are from 1789 until the Civil War in the 1860s, then the era between the Civil War through World War II, and then the post-World War II era until now.
The Supreme Court in the Pre-Civil War Period
From 1789 to the 1860s, which is considered the first period, the major conflicts that the Supreme Court got involved with were those involving federalism. The Court was petitioned to hear many fewer cases back then compared to today, but those it took on often dealt with settling whether states or the national government had power over something.
For example, the Court considered cases like McCulloch v. Maryland that directly dealt with federal power over state power. All in all, the Court was not asked to intervene in matters very often during the first 70 years or so of US History, and when it did, it was on issues of grand importance and scale.
During this era, the Court generally sided with the federal government over state governments, and many historians see this as an effort of institutional preservation. In that era, the persistence of the United States as a viable government was somewhat uncertain.
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The Effect of World War II on the Supreme Court
During the second period, from the middle of the 1800s through World War II, most of the conflicts that the Court was asked to resolve had to do with the government versus the economy, both of which greatly expanded during that period.
The Industrial Revolution was a period filled with great innovation and technological advancements in transportation, communication, agriculture, electricity, and more. These developments fundamentally changed the way most people in America experienced their everyday lives.
Goods, people, and services could move more easily around the country, and the rapid expansion of tools and technology allowed many more people to share in expanding prosperity. During this period, America also experienced intense growth in population, driven by mass immigration and advances in medical care.
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Post-World War II Influence on the Supreme Court
After World War II, the Court entered a critical period of resolving disputes between individuals and government, and it largely remains in this general paradigm today. Beginning with the Court’s early action on landmark civil rights cases, like Brown v. Board of Education, and civil liberties cases, like Miranda v. Arizona, the Court intervened in critical questions concerning the role of government in establishing and protecting liberties and equalities for individuals.
It is no accident that the period of history that included the greatest expansion of government was followed by a period in which Courts were asked to settle disputes about the appropriate role of government. Today, the Court is confronted with disputes related to abortion, gun rights, immigration laws, and access to healthcare.
Despite being asked to hear many cases, today’s Court only takes on less than one percent of those requests. This is primarily a workload constraint because each Supreme Court case involves dozens of filings, briefs, multiple parties, and often complicated questions.
The nine justices often go through many negotiations and drafts on a single case, and despite having clerks and other forms of assistance, it’s difficult to imagine the Court increasing its workload to beyond its current capacity.
Efforts at Reforming the Supreme Court
A little less than 100 years ago there was a rather serious effort to reform the Supreme Court. It was during the Great Depression and President Franklin Delano Roosevelt was interested in increasing the role of the federal government in regulating the economy as a way of lifting the United States into recovery; however, the court was not cooperative at first.
Between 1935 and 1937, Roosevelt was met with steady resistance as the Supreme Court denied and rejected many of his attempts at government expansion and economic regulation.
In part due to his frustration, Roosevelt began promoting the possibility of expanding the court to include not nine but 15 justices—one additional justice for every justice currently older than 70.
He suggested that by adding six additional justices to the court that he himself would select, it would tip the balance of power on the court in his favor. Roosevelt’s proposal became known as the ‘court-packing plan’.
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The Outcome of the Court-packing Plan
There is no question that a president manipulating the Supreme Court in the way that Roosevelt proposed was a rather dramatic violation of democratic norms. As the only president in US history to be elected four times to the presidency, Roosevelt was not particularly loyal to the norms of democracy.
But in the end, his court-packing plan didn’t materialize, because two justices decided to side with Roosevelt and uphold the constitutionality of the Social Security Act and the National Labor Relations Board—two key provisions of Roosevelt’s New Deal policy. With the Court on his side, Roosevelt let the court-packing plan go.
The change of heart by those justices became known as ‘the switch in time that saved nine’, meaning that the permanence of the nine-justice court was preserved because those justices had changed their minds.
There have not been serious attempts at reforming the Supreme Court since then. The institutions of the US government are stable, and by design are very difficult to change. Like all of the political institutions in the US, the Supreme Court has its flaws and its strengths. Yet despite these, it has done a pretty good job at maintaining its legitimacy and reputation.
Common Questions about the History of the Supreme Court and Its Politics
Franklin Delano Roosevelt wanted to change the number of justices in the Supreme Court from nine to 15 to tip the balance of power on the court in his favor. This was called the ‘court-packing plan’.
The ‘court-packing plan’ did not materialize because two of the existing justices decided to support Roosevelt. With the Court on his side, Roosevelt let the court-packing plan go.
From 1789 to the 1860s, the major conflicts that the Supreme Court got involved with were those involving federalism. From the middle of the 1800s through World War II, most of the conflicts had to do with the government versus the economy
