Can John Roberts stave off a Democratic assault on the Supreme Court?
that conservatives employed as an argument for forging ahead.) The chief justice may not be taking polls and holding focus groups, but he is acting like a man who is well aware that the popular legitimacy of the institution he leads is in danger.
The historical shadow looming over Roberts’s calculations is the confrontation between Franklin Roosevelt and the Supreme Court some 90 years ago. Roosevelt had found his economic reforms repeatedly overturned by a right-wing Supreme Court. After winning a landslide election, Roosevelt sought to take control of the Court by adding seats and appointing new and more liberal justices, only for the Court’s majority to reverse itself in 1937 and cede economic policy to Congress and the president.
Liberals have long feared that once the new generation of conservatives had gained control of the Supreme Court, it would revert to something like its pre-’37 stance.
Why would Roberts hesitate to seize the full range of power at his disposal — to the extent that he appears to be going against his own predilections? One reason is that the Court’s Republican majority is a historical accident. Unlike the Court that bedeviled FDR, which was the product of decades of Republican dominance that preceded him, the Roberts Court did not earn its majority as the result of Republicans winning a bunch of presidential elections.
The GOP majority on the Court is a combination of better actuarial luck and more selfless partisan teamwork by Republican justices and some ruthlessness by Senator
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