Presidential criticism of the Court, indeed, attacks on the Court, reflect not only the executive’s frustration with particular rulings or a line of decisions, but also recognition of the authority of the judiciary to check the President’s power and thwart the programs and policies of the administration. In the 1930s, President Franklin D. Roosevelt campaigned against the Court’s conservative economic philosophy and its rulings holding New Deal legislation unconstitutional.
In his 1936 reelection bid, which he won by a landslide margin, Roosevelt criticized what he characterized as the Court’s “horse and buggy jurisprudence.” Soon after his victory, FDR announced his “Court-Packing Plan,” which would have given him the authority to expand the number of the Supreme Court Justices from nine to fifteen by nominating six additional Justices, enough to change the complexion of the Court, provided that his nominees were approved by the Senate and that, once on the Court, they would vote in a manner that would sustain the New Deal philosophy. FDR’s plan was defeated by the Senate, in which the administration had chosen to originate the legislation, but not before the Court changed its mind –“A Switch in Time Saves Nine”—and upheld key pieces of New Deal legislation. At that point, as the Court changed its constitutional interpretations, it mattered little to Roosevelt that his plan had been defeated, for if he had lost the battle, he had won the war.
In 1968, President Nixon’s sharp criticism of the liberal decisions rendered by the Warren Court, aided what became his successful campaign for the Presidency. Nixon’s harsh criticism of the Warren Courts rulings in the area of criminal justice and civil rights, was accompanied by a promise to appoint only “strict constructionist” judges, whom he believed, would demonstrate fidelity to the text of the Constitution.
In 1980, and again in 1984, President Reagan captured presidential elections grounded, in part, on sharp attacks on the Court for its rulings on abortion rights of women. While Reagan was able to direct his Solicitor General to take lawsuits to the judiciary, seeking a ruling overturning Roe v. Wade, the premier decision on the subject of abortion, he was unable to control the words, votes and opinions of his nominee, Justice Sandra Day O’Connor, who not only maintained the integrity of Roe, but also wrote an opinion providing substantial protection for a woman’s right to abortion by introducing the “undue burden” test.