‘We are under a Constitution, but the Constitution is what the judges say it is”, said New York governor Charles Evans Hughes in 1907. There is no reason to believe that Hughes, who rose to become Chief Justice of the United States Supreme Court between 1930 and 1941, changed his opinion as head of the federal judiciary. President Franklin Delano Roosevelt, another former New York governor whom Hughes swore in as president thrice, tried “packing the court” for ideological reasons.

Since the US Supreme Court had struck down many New Deal laws as unconstitutional, Roosevelt, better called FDR by friends and foes alike, perceived the US Supreme Court as an obstacle to progress. Ironically, the court was headed by Hughes, a former Republican governor of New York whose record as a progressive politician and judge was beyond doubt. The iconic Chief Justice refused to get into a public duel with the president on the issue of “packing the court”—FDR’s ambitious plan of expanding the apex court to make it ideologically inclined toward his New Deal.

Insisting instead that as Chief Justice he was “disinterested in the matter, from a political standpoint, as anyone in the United States”, Hughes was of the opinion that the plan would make the court inefficient and destroy it completely as an institution. He never believed that judges should not harbour political opinions, but thought that it was unbecoming of a judge, let alone the Chief Justice of the US Supreme Court, to get into a partisan battle with the president. In a long letter to the Senate Judiciary Committee, Chief Justice Hughes explained that not only was addition of new judges unnecessary for ensuring efficiency, it would positively hamper the court’s operation and its ability to act as a cohesive branch of government.

Though the Chief Justice was scathing in his criticism of FDR’s plan to “pack the court”, he very cleverly kept clear of the ideological question and focused on the issue of the efficiency of the court instead. Despite this devastating letter, the Hughes court upheld a state minimum wages law and FDR’s pet National Labor Relations Act, and rejected challenges to social security, all with 5-4 majorities. Roosevelt’s ambitious plan to “pack the court” lost steam. A “switch in time” did indeed “save nine” (an allusion to the number of judges on the US Supreme Court full bench).

Chief Justice Hughes, in asserting the US Supreme Court’s authority as the final arbiter in matters relating to the Constitution, was actually continuing the glorious legacy of Chief Justice John Marshall, who delivered a landmark judgment in Marbury v Madison (1803) that the US Supreme Court could well strike down federal and state laws deemed to be at cross purposes with the Constitution. Known as judicial review of legislation (and extended subsequently to include executive action and decisions by lower courts), the judgment changed American jurisprudence forever.

Thirty years later, Chief Justice Marshall delivered another judgment that defined the contours of American federalism when in Barron v Baltimore (1833), he ruled that the Bill of Rights did not apply to the state governments and hence, the Fifth Amendment guarantee of just compensation in case a private property was acquired for public use was restricted to the federal government alone; in other words, if a state government had carried out such acquisition, no citizen could claim just compensation under the Fifth Amendment.

All of this changed thirty-five years later when the Congress passed the Fourteenth Amendment to the Constitution, which, apart from granting citizenship to African-Americans, required that no citizen be deprived of “life, liberty, and property” by the federal and state governments without due process of law (Due Process Clause) and that no state deny to “persons within its jurisdiction” equal protection of the laws (Equal Protection Clause).

Reversing its position on Barron, the US Supreme Court had time and again taken recourse to these two clauses of the Fourteenth Amendment to make the Bill of Rights applicable to the states, a process that subsequently came to be known as “incorporation” in American jurisprudence.

In a host of verdicts from the beginning of the twentieth century, the US Supreme Court made available in the states the protections guaranteed by the Bill of Rights by invoking the clauses of the Fourteenth Amendment: in Meyer v Nebraska (1923), it held a Nebraska law banning the teaching of German as unconstitutional; abolished racial segregation in public schools in Brown v Board of Education (1954); banned school prayer in Engel v Vitale (1962) and stopped the practice of Bible reading in public schools in Abington School District v Schempp (1963); created the right of American women to get an abortion in Roe v Wade (1973); upheld bilingual education in Lau v Nichols (1974); and recognised same-sex marriage in Obergefell v Hodges (2015).

Interestingly, the US Supreme Court had not only gone back on its position on Barron, it had reversed itself on other occasions as well. It evolved the doctrine of “separate but equal” in its verdict in Plessy v Ferguson (1896), thus legitimising racial segregation through Jim Crow laws in the formerly slave states of the American South.

In 1954, it overruled this decision to mandate desegregation in public schools in its ruling in Brown v Board of Education. The most controversial reversal of the past half century remains the overturning of Roe v Wade by its verdict in Dobbs v Jackson Women’s Health Organization (2022): not only was abortion no more a federal constitutional right, states were given the power to regulate (even ban) abortion.

Even though FDR’s grand plan to expand the US Supreme Court in order to force the judiciary into submission got derailed, “pack the court” was revived by a man who called himself an ardent admirer of FDR and yet was the biggest opponent of expansion of federal powers that FDR epitomised: Ronald Wilson Reagan, former governor of California and America’s fortieth president. Reagan, unlike his illustrious predecessor, did not want to increase the number of judges in the apex federal court; on the contrary, he wanted to fill all judicial vacancies that arose from time to time with judges he agreed with politically and ideologically. Even President George W. Bush, called “Reagan’s boy” for being ideologically closer to his father’s former boss than to his own father, appointed a lesser-known John G. Roberts as Chief Justice of the US Supreme Court in 2005 for purely ideological reasons. It was the Roberts court that overturned Roe.

Ronald Reagan was also a strong advocate of States’ Rights. He appointed in 1986 the conservative William H. Rehnquist as Chief Justice of the United States Supreme Court. Brought to the Supreme Court as Associate Justice by President Richard Nixon in 1972, Rehnquist evolved the doctrine of New Federalism wherein powers snatched from states and handed over to the Congress during the New Deal era, violating the Tenth Amendment and creating a great federal imbalance, were sought to be restored to the states in order to re-strengthen them. It was perfectly in alignment with the Republican goal and Reagan’s dream to rein in the US Congress, habituated since the time of the New Deal in framing “one-size-fits-all” federal laws.

Another conservative judge of the present Supreme Court, Justice Clarence Thomas, who had concurred in the reversal of Roe, combined the idea of States’ Rights with Chief Justice Marshall’s insistence that the Bill of Rights did not apply to the states to opine that since the Establishment Clause of the First Amendment applied only to the federal government, prohibiting it from having an official religion, the fifty states were free to have official religions of their own.

Whether it was the Establishment Clause of the First Amendment or the Due Process and Equal Protection Clauses of the Fourteenth Amendment, the verdicts delivered by the US Supreme Court had major implications for the federal balance of power. The twentieth century remained an era when the US Supreme Court created new fundamental rights and expanded existing ones and, in the process, seriously curtailed the authority of the states, thus earning the opprobrium of conservatives who viewed such verdicts as attempts to negate the “original intent” of the Founding Fathers. So, a beginning was made by President Reagan and his judicial protégé, late Chief Justice William Rehnquist, to hand power back to the states. The latest verdict of 2022 in overturning Roe is in continuation of the process that Reagan unleashed.

At the end of the day, like everything else in America, judicial verdicts have remained strictly ideological, meant to fulfill serious partisan objectives. Like the executive and the legislature, the judiciary in the United States is a purely ideological branch of government. The Constitution is indeed what the “judges say it is”; only that the judges may say different things at different times to serve their own ideological purposes.

(Views expressed are personal)

Saumyajit Ray is Assistant Professor in United States Studies, School of International Studies, Jawaharlal Nehru University, New Delhi

(This appeared in the print as '“Packing the Court”')