In her new book, FDR’s Gambit: The Court Packing Fight and the Rise of Legal Liberalism, the distinguished historian Laura Kalman has written the best account of the one time in the past century and a half that the number of justices seemed likely to change: when Franklin Delano Roosevelt, in the midst of his epic clash with the federal judiciary over the fate of the New Deal, tried and failed to radically increase the number of seats on the court. Kalman offers a blow-by-blow account of the law and politics behind what Roosevelt’s political adversaries successfully branded as his attempt to “pack the court.” She captures what was at stake in the fight, lays out FDR’s options, and rehearses the political tactics of the contending sides—the thrusts and parries, the missteps and the ingenious maneuvers. We may never have a better recounting of the law and politics of this particular moment of history.
Kalman’s engaging book is timely, too. In the years since a Republican Senate prevented Barack Obama from filling the seat vacated by the death of Justice Antonin Scalia in 2016, some Democrats have revived talk of altering the court’s size. Such proposals grew louder when Donald Trump’s one-term presidency produced three new justices, including one (Amy Coney Barrett) who took the seat vacated by the death of Ruth Bader Ginsburg weeks before the 2020 elections. But critics from across the political spectrum deride the idea and point to Roosevelt’s thwarted effort. For generations, they note, observers have condemned the maneuver as an unprincipled and politically ham-fisted mistake, in which FDR gambled away a good deal of his considerable political capital on a futile and foolish attempt to influence the court.
Kalman disagrees. Roosevelt’s attempted court packing, she contends, was a savvy, high-stakes move by perhaps the most politically astute president in US history. Yes, Roosevelt made mistakes. But in her meticulous account, Kalman shows that he won his struggle to transform the American constitutional order because of, and not merely in spite of, his attack on the court. The court-packing initiative shielded Roosevelt’s great legislative triumphs from judicial interference in a way that no other available strategy could have accomplished.