After hearing some of the TV commentary on the Schiavo circus, including Randall Terry blaming America's problems on "judicial decree" and James Dobson telling CNN Congress had the power to strip authority from judges, I dug up FDR's
"court packing" speech of almost exactly 68 years ago. Does any of it sound familiar to you?
When the Congress has sought to stabilize national agriculture, to improve the conditions of labor, to safeguard business against unfair competition, to protect our national resources, and in many other ways, to serve our clearly national needs, the majority of the Court has been assuming the power to pass on the wisdom of these acts of the Congress - and to approve or disapprove the public policy written into these laws.
The Court in addition to the proper use of its judicial functions
has improperly set itself up as a third house of the Congress - a super-legislature, as one of the justices has called it - reading into the Constitution words and implications which are not there, and which were never intended to be there.
We have, therefore, reached the point as a nation where we must take action to save the Constitution from the Court and the Court from itself. We must find a way to take an appeal from the Supreme Court to the Constitution itself. We want a Supreme Court which will do justice under the Constitution and not over it. In our courts we want a government of laws and not of men.
I want - as all Americans want - an independent judiciary as proposed by the framers of the Constitution. That means a Supreme Court that will enforce the Constitution as written, that will refuse to amend the Constitution by the arbitrary exercise of judicial power - in other words by judicial say-so. It does not mean a judiciary so independent that it can deny the existence of facts which are universally recognized.
How then could we proceed to perform the mandate given us?
Mandate ... that certainly sounds familiar.
Like all lawyers, like all Americans, I regret the necessity of this controversy. But the welfare of the United States, and indeed of the Constitution itself, is what we all must think about first. Our difficulty with the Court today rises not from the Court as an institution but from human beings within it. But
we cannot yield our constitutional destiny to the personal judgment of a few men who, being fearful of the future, would deny us the necessary means of dealing with the present.
...
During the past half-century the balance of power between the three great branches of the federal government has been tipped out of balance by the courts in direct contradiction of the high purposes of the framers of the Constitution. It is my purpose to restore that balance. You who know me will accept my solemn assurance that in a world in which democracy is under attack, I seek to make American democracy succeed. You and I will do our part.
I don't know about you, but I see amazing parallel's between FDR's great overreach and the rhetoric coming from right-wingers today.
A little more background - FDR made this speech after re-election by the biggest landslide in history, with coattails that gave Democrats more than 2/3 majorities in both houses. In the 1938 midterms, Democrats lost 81 House seats and eight Senate seats to Republicans - in part due to the economy, and in large part due to the disaster of hubris that was courtpacking.