Recently the West Virginia Supreme Court of Appeals censured and fined West Virginia Family Court Judge Louise Goldston for searching the home of my client. That put an end to the judicial disciplinary proceedings over that issue. However, the federal civil rights lawsuit remains pending. Prior to the state supreme court opinion being released, Judge Goldston had filed a motion to dismiss in that case, asserting absolute judicial immunity, and we had filed our response brief, arguing essentially that judicial immunity did not apply because searching my client’s residence was not a “judicial act.”
On December 3, 2021, the federal court, sua sponte (on its own without request by a party), entered an order directing both my client and the defendant judge to file a supplemental brief opining whether the state supreme court opinion had an effect on the outcome of the federal court’s ruling, which has yet to come, those supplemental briefs being due this past Friday. Here’s the order:
Both parties filed responses on Friday afternoon, which will be posted below, in their entirety. What I think the Court was hopefully getting at, which we argued in our supplemental brief, is that the West Virginia Supreme Court opinion very well may be entirely dispositive of the main issues in the pending federal case. Why? Because Judge Goldston was the defendant in that underlying state case and had a full and fair opportunity at litigating all issues in that case. A federal court cannot thereafter rule differently. This would violate the Constitution, as we pointed out in our supplemental brief.
The West Virginia Supreme Court held conclusively that Judge Goldston was not performing a judicial act when she searched my client’s home on March 4, 2020, but rather was acting in a law enforcement executive capacity. The issue of whether the conduct complained of was a “judicial” act in nature is one of the requisites to get past absolute judicial immunity. Therefore, a federal court cannot subsequently issue a different ruling on the same issue against the same defendant. Moreover, the state supreme court also concluded under an even higher burden than a civil lawsuit requires (clear and convincing evidence) that Judge Goldston violated both the federal and state constitutions when she invaded the sanctity of my client’s home on that day. This arguably disposes of much of the civil case, by itself, assuming judicial immunity does not apply.
These are interesting and unusual issues. Thus, please feel free to read the supplemental brief I prepared. You can compare and contrast her response and reach your own conclusion. I’ll definitely provide an update once we receive the federal court’s ruling on this.
Just a few minutes ago, the West Virginia Supreme Court issued their opinion in the Family Court Judge search case, censuring Judge Louise Goldston for performing an illegal search at the home of a litigant – my client, Matt Gibson. Though the Court elected not to raise the recommended fine of $1,000, the Court declined to opt for the less-serious written “reprimand.” Thankfully, the Court dismissed the Family Court Judicial Association’s arguments that Family Court judge have the power to engage in home searches disguised as “home views”:
We begin with a threshold question: Did Judge Goldston view the ex-husband’s home, or did she search it? We find that she searched it. A “view” is “the act or proceeding by which a tribunal goes to observe an object that cannot be produced in court because it is immovable or inconvenient to remove….”
We agree that the ex-husband’s home was “immovable” and certainly “inconvenient” to produce in court. View, BLACK’S LAW DICTIONARY (11th ed. 2019). However, Judge Goldston did not go to the property to observe the ex-husband’s house; she went there to locate and seize certain of its contents—pictures, DVDs, and other items of personal property. These items of personal property were not “immovable or inconvenient to remove” from the home. Ibid. In fact, the ex-wife removed many of these items during the so-called “view.” Accordingly, we find that Judge Goldston’s actions at the residence were not a view.
On the contrary, the record is clear that Judge Goldston went to the property to locate things, not simply to observe them. Her own words support this conclusion. When the ex-husband demanded a list of what she was seeking, she appeared to reply, “[y]ou have a list of everything [unintelligible] attached to the order.” When the ex- husband professed not to “know where some of it’s at[,]” she replied, “Well, we’re gonna find it.”
Looking for things is a “search” by any sensible definition of the term. As the United States Supreme Court stated in Terry v. Ohio, 392 U.S. 1, 16 (1968), “it is nothing less than sheer torture of the English language to suggest that a careful exploration of the outer surfaces of a person’s clothing all over his or her body in an attempt to find weapons is not a ‘search’”.
Searches are an activity of the executive department. State ex rel. Parma Cmty. Gen. Hosp. v. O’Donnell, 2013-Ohio-2923, ¶ 7 (stating that “searches are executive in nature.”). “Indeed, searches are so quintessentially executive in nature that even a judge who participates in one acts ‘not * * * as a judicial officer, but as an adjunct law enforcement officer.’” State ex rel. Hensley v. Nowak, 52 Ohio St. 3d 98, 99, 556 N.E.2d 171, 173 (1990)….
In light of these clear prohibitions, we hold that the West Virginia Constitution forbids a judicial officer to participate in a search because a search is an exercise of executive power. W. Va. Const. art. 5, § 1. Because Judge Goldston plainly engaged in such a search, we find that the so- called “view” was improper.
On September 10, the West Virginia Attorney General issued an Opinion letter ultimately concluding that vaccine mandates in West Virginia would be unconstitutional in any blanket form – whether public or private employees.
In the end, a law requiring all state employees to be vaccinated or requiring all businesses to demand vaccine passports from all patrons would violate our State’s constitution (as it should be properly understood) and violate both state and federal law. The same finding would follow no matter what aspect of “state” government is implicated; mandates and passport requirements imposed by counties, municipalities, and other public actors would give rise to the same legal concerns as a mandate or passport requirement imposed at the statewide level. We therefore urge any public entities to comply with such guidance and come into accordance with this opinion.
Likewise, a private employer’s mandate or vaccine-passport requirement may violate federal and state anti-discrimination laws if it does not, at a minimum, provide for appropriate exceptions for those with religious- or disability-based objections.
He urges the Legislature to take action.
For reasons discussed further, the Legislature can undeniably act. In fact, “[t]he Constitution of West Virginia being a restriction of power rather than a grant thereof, the legislature has the authority to enact any measure not inhibited thereby.” Syl. pt. 5, State ex rel. Cooper v. Tennant, 229 W. Va. 585, 730 S.E.2d 368 (2012). Ultimately, “[i]t is the duty of the Legislature to consider facts, establish policy, and embody that policy in legislation.” Syl. pt. 3 (in part), State v. Dubuque, 239 W. Va. 660, 805 S.E.2d 421 (2017).
While our telephones and email flood with messages from upset parents, angry about the forced masking of our children, an unlikely hero comes to the rescue. However, he completely messed up. He’s attempting to score for the opposing team. Democrat nominee for W. Va. Attorney General in the 2020 election, in the name of allegedly protecting civil rights for multiple children, filed a lawsuit against the Governor and various school entities to attempt to force a comprehensive statewide mask mandate for children. He is essentially suing to force the Governor to issue an emergency executive order.
Where do I begin? If the Supreme Court wouldn’t let me force the Governor to call the legislature into session last year, in lieu of just issuing incessant executive orders, I can’t imagine they would allow an anti-civil rights lawyer to force him to actually issuing an executive order. We can take issue with the scope of the Governor’s emergency powers, but the concept that the Governor gets to issue, or not issue, his own executive orders, seems pretty uncontroversial. Though I suppose it’s having the desired effect of convincing various county school boards to reverse their prior decisions on a local level, which several have apparently done in the past day or so.
At the same time, the Republican leadership in the W. Va. legislature sent a letter to the W. Va. Attorney General official asking him to give an opinion on whether employer vaccine mandates and vaccine passports are in violation of the West Virginia Constitution. First off, it’s the U.S. Constitution that stands any chance of going up against the mandates. Any analysis of the W. Va. Constitution is going to have to begin with the U.S. Supreme Court’s Jacobson case from 1905. Because that would be the first case cited by the W. Va. Supreme Court, should they hear the issue.
Proponents of governmental overreach in the COVID era have consistently pointed to Jacobson as justification for whatever measures the government is undertaking for the purported goals of protecting the health and safety of their citizens, which in turn is utilized by both public and private employers to attempt to mandate vaccines on their employees. Jacobson opined on the role of the U.S. Constitution in controlling state police powers, as understood in 1905, granting states and local governments an affirmative carte blanche to engage in state disease control efforts.
What that means, is that as it currently stands, SCOTUS has said that the U.S. Constitution allows vaccine mandates in the past. So if W. Va. has carte blanche to engage in disease control efforts, the ball is squarely in the State Legislature’s court. No federal court or caselaw is likely going to stop it. The only way to stop broad employer mandates right now, whether public or private, is through legislative action. That is a very real possibility right now in West Virginia, given the fact that numerous state legislators are currently calling for a special session to consider that very legislation.
Regarding Jacobson’s 1905 era values, let’s not forget that Jacobson’s legal rationale led to the case of Buck v. Bell, the infamous 1927 U.S. Supreme Court decision that found no restriction was placed on states’ police powers by the U.S. Constitution regarding a state’s public policy initiative to engage in involuntary sterilization of a woman who was purported to be of low intelligence. 274 U.S. 200 (1927). This decision by the SCOTUS gave the eugenics movement added legitimacy and considerable momentum. By 1931, 28 out of 48 states had adopted eugenic sterilization laws.
Jacobson left the door open for future refinement, conceding that state or local government could exercise police powers in an arbitrary or unreasonable manner. The ensuing future refinement came in the form of 20th century civil liberties which were recognized and developed by the courts. Since Jacobson, the Supreme Court has recognized numerous limits on health and safety regulations, including the right against involuntary restraint, decisions about marriage, contraception, procreation, family relationships, sexual relationships, child rearing and education, as well as the right to refuse life-saving treatment. Nobody is arguing that state police powers retain the ability to suppress any of these now-federally-recognized rights. But they want to leave the forced vaccine part in effect.
In addition to the rights itemized supra, the Supreme Court recognized, and continues to recognize, the right of bodily integrity, which was the category of freedom from government action, the higher order, under which the specific rights described in Roe, as well as Cruzan, fell. E.g., Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 915 (1992) (“One aspect of this liberty is a right to bodily integrity, a right to control one’s person.”). In Cruzan, Chief Justice Rehnquist reiterated in his majority opinion, “every human being of adult years and sound mind has a right to determine what shall e done with his own body….” Cruzan, 479 U.S. at 269.
West Virginia has also recognized the right to bodily integrity as a fundamental right. In the recent decision in Kruse v. Farid, 835 S.E.2d 163 (W. Va. 2019), the West Virginia Supreme Court noted that “all competent patients have the right to refuse medical care,” and that such right “has been recognized by both the United States Supreme Court and by the Legislature of this State.” Id. at 168. The W. Va. Court cited the SCOTUS, at length:
[a]t common law, even the touching of one person by another without consent and without legal justification was a battery. See W. Keeton, D. Dobbs, R. Keeton, & D. Owen, Prosser and Keeton on Law of Torts § 9, pp. 39-42 (5th ed. 1984). Before the turn of the century, this Court observed that “[n]o right is held more sacred, or is more carefully guarded, by the common law, than the right of every individual to the possession and control of his own person, free from all restraint or interference of others, unless by clear and unquestionable authority of law.” Union Pacific R. Co. v. Botsford,
141 U.S. 250, 251[, 11 S. Ct. 1000, 1001, 35 L. Ed. 734] (1891). This notion of bodily integrity has been embodied in the requirement that informed consent is generally required for medical treatment. Justice Cardozo, while on the Court of Appeals of New York, aptly described this doctrine: “Every human being of adult years and sound mind has a right to determine what shall be done with his own body[.]” Schloendorff v. Society of New York Hospital, 211 N.Y. 125, 129-130, 105 N.E. 92, 93 (1914) [, superseded by statute on other grounds as stated in Retkwa v. Orentreich , 584 N.Y.S.2d 710, 154 Misc. 2d 164 (N.Y. Sup. Ct. 1992) ]. The informed consent doctrine has become firmly entrenched in American tort law. See Keeton, Dobbs, Keeton, & Owen, supra, § 32, pp. 189-192; F. Rozovsky, Consent to Treatment, A Practical Guide 1-98 (2d ed. 1990).…
[T]he common-law doctrine of informed consent is viewed as generally encompassing the right of a competent individual to refuse medical treatment. Cruzan by Cruzan v. Dir., Mo. Dep’t of Health , 497 U.S. 261, 269-70, 277, 110 S.Ct. 2841, 111 L.Ed.2d 224 (1990). Accord Collins , 517 S.W.3d at 92 (” ‘All competent adults have a fundamental right to bodily integrity. … Included in this right is the right of competent adult patients to accept or reject medical treatment.’ ” (quoting Church v. Perales , 39 S.W.3d 149, 158 (Tenn. Ct. App. 2000) ) (additional citations omitted)). Likewise, the West Virginia Legislature has recognized this personal right to make health care decisions: “Common law tradition and the medical profession in general have traditionally recognized the right of a capable adult to accept or reject medical or surgical intervention affecting one’s own medical condition[.]” W. Va. Code § 16-30-2(b)(1) (LexisNexis 2016).
Kruse v. Farid, 835 S.E.2d 163, 168-69 (W. Va. 2019).
Thus, there is some basis in West Virginia state law in which to oppose mandates. However, it’s still grounded in federal constitutional law. You would expect the legislative leadership to know and understand this. Perhaps it’s just political posturing, sending a hardball to the Attorney General, in order to force him give the ultimate opinion that there’s nothing in the West Virginia Constitution which applies the mandate issues presented. What benefit does that confer to we the people, who are opposed to mandates? I can take the liberty of answering for the Attorney General that what the West Virginia Constitution does say, is that sole legislative power is vested in the legislature. Since SCOTUS believes state police powers control mandate law at the state level, the legislature should have the final say. At least unless our anti-civil rights hero gets his way. But do they have the political will?
We recently obtained a report from the West Virginia Office of Disciplinary Counsel which found that a West Virginia Family Court Judge made improper and false allegations about the judicial disciplinary prosecutors who have been prosecuting a fellow Family Court Judge, Louise Goldston. The report concluded, in part:
It is shocking that a long-standing member of the judiciary bestowed with the honor of being part of the system designed to protect and preserve the integrity of the judicial system would make such baseless accusations designed to solely to impugn the integrity of two members of the West Virginia State Bar. It does not appear that FCJ (Family Court Judge) Stotler conducted any factual investigation into the allegations regarding JDC (Judicial Disciplinary Counsel) before regurgitating the untimely, unsupported allegations made by FCJ (Family Court Judge) Goldston and sending an ex parte communication, written on his official court letterhead, to the Supreme Court. Additionally, the Judicial Branch of government has the exclusive authority to regulate the practice of law in the State of West Virginia, but FCJ Stotler’s letter was also sent to members of the Legislature….
The law is not an arena where we vilify civility, curse through preparation, and denigrate skilled, zealous advocacy.
The ODC investigation commenced after a sitting Family Court Judge, Judge Glen R. Stotler, of the 23rd Family Court Circuit (Hampshire, Mineral and Morgan Counties), also a member of the Judicial Hearing Board that heard the Goldston case, sent a March 25, 2021 letter (on his official court letterhead) to the Chief Justice of the WV Supreme Court, making numerous allegations against the judicial prosecutors in regards to their handling of the Goldston case, and ultimately requesting an investigation into their actions, as well as their termination, “or at the least a serious reprimand.” Here’s a partial shot of the three-page letter:
Not only did he send the letter to the Supreme Court, but he sent it to the Senate Judiciary Committee Chairman, the House Judiciary Committee Chairman, the Court’s administrative office, as well as to the President of the Family Court Judicial Association, Deanna R. Rock, another sitting Family Court Judge.
Here’s the ODC investigation report in its entirety, which details the entire ordeal up to that point, including a discussion of some of the sworn statements taken of the judges involved. It also gives a rare behind-the-scenes look at the judicial disciplinary prosecution procedures, which are usually confidential:
Shockingly, on the same day as this ODC report was issued – May 13, 2021 – the Family Court Judicial Association apparently helped Judge Stotler double-down, by essentially turning his letter into a “Resolution” adopted by the entire Family Court Judicial Association, again making allegations against the JDC and calling for their termination. It’s my understanding that this “Resolution” was effectively sent back by the Supreme Court Clerk’s office as inappropriate. They later retained a lawyer and filed an amicus brief in the Goldston case, which is set for oral arguments next month. Here’s the Resolution:
Perhaps they should have waited maybe one more day to issue their Resolution, since unbeknownst to them, apparently, the Office of Disciplinary Counsel on that same day issued this lengthy report revealing Judge Stotler’s allegations as false, outrageous and highly inappropriate. The ODC report documented that the judicial disciplinary prosecutors were falsely accused, and that perhaps the accuser(s) might want to examine their own misconduct:
The former chair of the JIC (Judicial Investigation Commission) stated he could speak to the abilities and character of Respondent Tarr and Respondent Lanham. He stated as attorneys representing the JIC they have exceedingly difficult jobs as they must not only know the judicial canons but act fearlessly in doing those things as required by their jobs as JDC. The former Chair of the JIC stated that FCJ Stotler’s March 2021 letter demonstrates both an ignorance of the system and a willingness to respond to adverse decisions in an irresponsible manner. The former Chair further opined that the reckless letter required FCJ Stotler’s removal from further service on the Judicial Hearing Board.
Now, an entire body of Family Court Judges have made the same false allegations and requests. Numerous sitting Family Court Judges out there have apparently now engaged in what is described in the report as acting in an ignorant and irresponsible manner, and which raises a serious question as to their fitness to serve in a judicial capacity. But who are they, specifically? They’re hiding behind their supposedly private “Association.” The ODC report, if you read through it, mentions the involvement of then-President of the Family Court Judicial Association, Deanna R. Rock. In fact, it mentions that she apparently assisted Judge Stotler in preparing the letter with the false allegations.
Judge Rock, along with another Family Court Judge, also apparently assisted Judge Goldston with her brief, which included the false statements about the judicial prosecutors:
Did it ever seem like a good idea to get involved in a disciplinary prosecution of a fellow judge and attempt to have the prosecutors fired? What are the potential remedies? Judicial disciplinary complaints? Impeachment proceedings? If Judge Stotler isn’t fit to preside over a judicial disciplinary hearing, then is he, or others who joined him, fit to preside over cases involving people’s children and finances? These questions need to be asked, and there may be some news on that front in the near future.
We have several pending FOIA requests pertaining to this, and hopefully will have more information soon. Meanwhile, the federal civil rights lawsuit against Judge Goldston, and others, remains pending. Read more about the background of this case here:
Today the West Virginia Supreme Court issued their opinion from the lawsuit we filed against the Governor on behalf of the Wayne County Republican Party. We already knew they ruled against us. But now we know the reasoning. If you recall, there were two competing letters: one from the Wayne County Chair, and one from the State Republican Party. In the end, the Court essentially threw both of them out, and held that the Governor gets to choose his own replacement after 15 days. This was probably something the legislature should have addressed already, as the opinion points out.
Join me at 7pm Live – The SCOTUS issued an opinion today protecting the sanctity of the Fourth Amendment protections of the home, which also served as an anti-red-flag ruling, restricting the police from performing warrantless searches of homes to seize firearms.
This is just in time for recent updates on two of our search and seizure cases with the same or similar issues: the Putnam County drug task force search case and the WV Family Court Judge Search case.
I realized that I never posted about oral arguments in the Wayne County case, nor the Supreme Court decision which was handed down while we were driving home. On Tuesday, oral arguments were held, for around an hour, which seemed to me to go very well. I honestly was surprised to find out that they had ruled against us. Here’s the debrief video I made that evening, which includes an excerpt of my rebuttal arguments during the oral arguments hearing:
If I had to guess, I would speculate that they found a procedural means to rule against us, such as standing, or perhaps the existence of the so-called “second signature,” where my client unknowingly signed the letter presented to the Governor by the State GOP. At least I hope so, because otherwise the Court will have modified legislation from the bench – because the law was very clearly on our side.
Here are some of the media reports from the day:
For about an hour earlier this afternoon, lawyers for Governor Justice and the West Virginia Republican Party presented arguments against a lawyer for the chairman of the Wayne County Republican Executive Committee.
A few weeks ago, the governor picked Booth, whose family runs a highway safety contracting business, to fill the vacancy. But Booth’s name had not appeared on a list originally submitted by Wayne County political leaders.
The argument before justices focused on who has the authority to submit names to fill such vacancies and the proper procedure for doing so.
“This is one political party committee that is elected by Wayne County voters engaged in a power grab or attempted control by the state executive committee that has no direct connection to the local Wayne County voters,” said John Bryan, counsel for the Wayne County GOP chairman.
“That is the whole point: that they ended up with somebody they voted for or necessarily even knew but they ended up with somebody that, according to the records, donated to Governor Justice when he ran for office in 2016 as a Democrat.”
He was referring to records showing Booth as a $1,000 maximum-amount donor to Justice’s first run, when he won as a Democrat before changing parties after a few months.
I was obviously freshly perturbed when I gave this interview:
Attorney John Bryan, who is representing Maynard, was disappointed by the ruling.
“The governor has been able to get around the law whenever he pleases for the past year now,” Bryan told The West Virginia Record. “When the full opinion is issued, I suppose we’ll find out how he did it this time. … State laws throughout the country were not followed in the 2020 election, and not a court in the land seems to care.”
There is a vigorous debate about whether the community care exception can apply to searches of a person’s home as well as of their car. Vehicles have always had less 4th Amendment protection than homes, which are considered a person’s most private sphere. Federal courts have been divided on this question and the Supreme Court has not ruled on it until now.
This is actually the same “doctrine” Putnam County is asserting in the Michael Walker open carry case, which is being heard at the 4th Circuit in early March. Violate the 4th Amendment? No biggie, just claim you were looking out for the community…..
Joe Biden won’t answer the question about whether he’ll attempt to pack the U.S. Supreme Court, until the day after the election – so he’s claimed. What is “packing the Court,” and why is it such a terrible idea that even Ruth Bader Ginsburg warned against it?
The Constitution did not specify the number of justices to sit on the Supreme Court. That’s up to Congress. For the past 150 years or so, Congress has maintained that number at 9. An odd number is required, so as to avoid the rather-anti-climactic tie vote. With a 9 member Court, a 5-4 decision, or better, wins the case. With the loss of RBG, the American left loses a crucial vote on the Court, which is why they are threatening to increase the number of justices on the Court, so as to counteract her replacement with Judge Amy Coney Barrett. Thus, if Biden wins, and if Congress is able to increase the number, they could create a left-wing majority on the Court by increasing the number of Democrat-nominated justices.
But the problem with any such plan is, that eventually the other side will return to power and retaliate accordingly. What we then end up with has now become a super-legislature, rather than a Supreme Court, as the Founders intended. Even RBG herself was against Democrats’ 2019 threats to pack the Court:
Justice Ruth Bader Ginsburg said in an interview Tuesday that she does not favor proposals put forth by some Democratic presidential candidates who have advocated changing the number of Supreme Court justices if the Democrats win the presidency.
Ginsburg, who got herself in trouble criticizing candidate Donald Trump in 2016, this time was critical not of any particular Democratic contender, but of their proposals to offset President Trump’s two conservative appointments to the court.
“Nine seems to be a good number. It’s been that way for a long time,” she said, adding, “I think it was a bad idea when President Franklin Roosevelt tried to pack the court.”
To pull it off, the Democrats would really need to add 4 new liberal members to the Court, which would create a 7-6 majority. Setting long-term retaliation and consequences to the Court aside, the results would be disastrous to the Second Amendment:
A 7-6 progressive majority on the court would very likely overturn decades of precedent that have protected gun owners from both state and federal attempts to deny them their Second Amendment rights. Millions of American gun owners would be subject to these changes and the laws, which Democrats, some of whom are committed to confiscating guns, would impose.
The most obvious change to free speech laws that would come with a progressive majority on the Supreme Court would be the overturning of the 2010 5-4 Citizens United decision….. More broadly, speech laws such as those that exist in New York City requiring people to use preferred pronouns even if they do not believe that gender is mutable, would find a much kinder hearing in the new court.
The progressive reading of Roe v. Wade is almost limitless in its scope and perhaps the only question mark would regard the ability to kill babies even after they are outside of the mother. Beyond that, it is very likely that almost any state restrictions would be shot down.
Several religious liberty cases such as Hobby Lobby and Little Sisters of the Poorhave been closely decided of late. It is safe to assume these decisions would be reversed. Practicing Christians and members of other faiths would face far greater restriction in living their faith in their public life. Our understanding of how we may practice our religions would undergo a major change, abandoning the American tradition of public faith, and limiting religious expression to the church and the home.
In all likelihood, a new progressive majority would be open to efforts to abolish the electoral college, to allow statehood for the District of Columbia and Puerto Rico, and to allow voting by people in the country illegally. All of these changes would skew towards the Democrats and could very well result in one-party federal rule of the United States.
So what stopped FDR from packing the Supreme Court back in the 1930s? It happened during the Great Depression, when FDR was pushing his socialist New Deal programs, only to have them struck down by the conservative-majority Supreme Court of the early 1930s. President Roosevelt sought to solve the problem sooner, rather than later, so he introduced the “Judicial Procedures Reform Bill of 1937,” commonly referred to as the “court packing plan.” This would have allowed him to appoint up to 6 additional justices to the Court for every justice older than 70.5 years, or who had already served 10 years or more. In reality, a conservative majority had developed on the Court, and like Biden, he was willing to add justices to create his own new majority, consequences be damned:
From the outset of his presidency, FDR had known that four of the justices—Pierce Butler, James McReynolds, George Sutherland and Willis Van Devanter—would vote to invalidate almost all of the New Deal. They were referred to in the press as “the Four Horsemen,” after the allegorical figures of the Apocalypse associated with death and destruction. In the spring of 1935, a fifth justice, Hoover-appointee Owen Roberts—at 60 the youngest man on the Supreme Court—began casting his swing vote with them to create a conservative majority.
FDR indirectly attacked the Court, claiming publicly he was concerned about their age, rather than the ideological point of view of its majority:
FDR recognized, though, that a direct assault on the court must be avoided; he could not simply assert that he wanted judges who would do his bidding. The most promising approach, it seemed, would be to capitalize on the public’s concern about the ages of the justices. At the time of his reelection, it was the most elderly court in the nation’s history, averaging 71 years. Six of the justices were 70 or older; a scurrilous book on the court, The Nine Old Men, by Drew Pearson and Robert Allen, was rapidly moving up the bestseller lists.
FDR basically lied about his motivations. Rather than admit to the American people that he was playing politics, and attempting to enact his progressive legislation without interference by the conservative court, he feigned concern over the age of the justices:
“A part of the problem of obtaining a sufficient number of judges to dispose of cases is the capacity of the judges themselves,” the president observed. “This brings forward the question of aged or infirm judges—a subject of delicacy and yet one which requires frank discussion.” He acknowledged that “in exceptional cases,” some judges “retain to an advanced age full mental and physical vigor,” but quickly added, “Those not so fortunate are often unable to perceive their own infirmities.” Life tenure, he asserted, “was not intended to create a static judiciary. A constant and systematic addition of younger blood will vitalize the courts.”
Similar to what would happen in 2020, the result was all-out war between the branches of government, and between the political parties:
While it was never voted on in Congress, the Supreme Court justices went public in their opposition to it. And a majority of the public never supported the bill, either, says Barbara A. Perry, director of presidential studies at the University of Virginia’s Miller Center.
“Congress and the people viewed FDR’s ill-considered proposal as an undemocratic power grab,” she says. “The chief justice (Charles Evans Hughes) testified before Congress that the Court was up to date in its work, countering Roosevelt’s stated purpose that the old justices needed help with their caseload.”
“It was never realistic that this plan would pass,” Perry says. “Roosevelt badly miscalculated reverence for the Court and its independence from an overreaching president.”
The battle lasted 168 days. It’s difficult to imagine how it would play out in the era of social media and biased news. But even then, it was ugly:
Roosevelt’s message touched off the greatest struggle in our history among the three branches of government. It also triggered the most intense debate about constitutional issues since the earliest weeks of the Republic. For 168 days, the country was mesmerized by the controversy, which dominated newspaper headlines, radio broadcasts and newsreels, and spurred countless rallies in towns from New England to the PacificCoast. Members of Congress were so deluged by mail that they could not read most of it, let alone respond…..
At the time, the FDR liberals showed little concern for the Supreme Court as an independent and important branch of government. If other countries could enact these programs, then so should we be able to do so….
If Roosevelt won, opponents warned, he would destroy the independence of the judiciary and create an evil precedent for successors who wished to “pack” the court. If Roosevelt lost, his supporters countered, a few judges appointed for life would be able to ignore the popular will, destroy programs vital to the welfare of the people, and deny to the president and Congress the powers exercised by every other government in the world. Although the country divided evenly on the issue—about as many were for Roosevelt’s plan as against it—the opposition drew far more attention, especially on editorial pages……
The Bill was ultimately defeated, but FDR still got what he wanted in the end. The historians’ lesson of the affair, as relayed to us in 2005, is perhaps more credible than any we would receive today, in the era of over-politicization of all fields of academia. So pay attention to the parts in bold:
The nasty fight over court packing turned out better than might have been expected. The defeat of the bill meant that the institutional integrity of the United States Supreme Court had been preserved—its size had not been manipulated for political or ideological ends. On the other hand, Roosevelt claimed that though he had lost the battle, he had won the war. And in an important sense he had: he had staved off the expected invalidation of the Social Security Act and other laws. More significantly, the switch in the court that spring resulted in what historians call “the constitutional revolution of 1937”—the legitimation of a greatly expanded exercise of powers by both the national and state governments that has persisted for decades.
The 168-day contest also has bequeathed some salutary lessons. It instructs presidents to think twice before tampering with the Supreme Court. FDR’s scheme, said the Senate Judiciary Committee, was “a measure which should be so emphatically rejected that its parallel will never again be presented to the free representatives of the free people of America.” And it never has been. At the same time, it teaches the justices that if they unreasonably impede the functioning of the democratic branches, they may precipitate a crisis with unpredictable consequences. In his dissent in the AAA case in 1936, Justice Stone reminded his brethren, “Courts are not the only agency of government that must be assumed to have capacity to govern.” These are lessons— for the president and for the court—as salient today as they were in 1937.
As RGB knew, even the mighty FDR was wrong to attempt to destroy the SCOTUS by increasing the number of justices as a means to an end for temporary political goals. However enticing it might appear, it’s going to hurt everyone in the end.