Supreme Court Nomination

Report Outline
Special Focus

Overview

The president of the United States went on nationwide radio one March day and declared that he wanted “a Supreme Court that will enforce the Constitution as written—that will refuse to amend the Constitution by the arbitrary exercise of judicial power—amendment by judicial say-so.”

It was 1937, and President Franklin D. Roosevelt was frustrated because the Supreme Court had declared much of his New Deal legislation unconstitutional. Half a century later, the same frustration produces the same thoughts not from a liberal Democratic president but from a conservative Republican one. In announcing his choice of U.S. Appeals Court Judge Robert H. Bork to replace retiring Justice Lewis F. Powell Jr., President Reagan hailed the nominee as a “prominent and intellectually powerful advocate of judicial restraint” who “shares my view that judges' personal preferences and values should not be part of their constitutional interpretations.”

Neither Roosevelt nor Reagan, however, was as interested in abstract theories about judicial behavior as they were about political results. Both presidents, re-elected by landslides, felt thwarted by a slight majority of the Supreme Court, whose nine members were appointed for life. Roosevelt wanted his New Deal legislation upheld, and lacking court vacancies to fill with like-minded justices, he proposed to “pack” the court by expanding its size. Reagan, with a vastly different social agenda in mind, wants justices who will support school prayer, allow restrictions on abortion, reject affirmative action and restrain government regulators.