Jill M. Fraley, Washington and Lee University School of Law, has published What Roosevelt Did to Brown v. Board of Education, or Race and Court Packing in the Nebraska Law Review:
Roughly one-third of American schools remain segregated. Scholars have offered a variety of explanations, mostly social and cultural, but sometimes legal, for why desegregation did not proceed effectively after Brown v. Board of Education. This Article articulates a less expected
and previously undocumented cause: President Roosevelt's prior attempt at court packing slowed-even derailed-desegregation.
The story of what Roosevelt's court packing did to make the work of integration harder is a cautionary tale, particularly for those who want to alter the U.S. Supreme Court now in furtherance of a modern cause. The only reasonable route for reforming the Supreme Court must be based on furthering the stability and legitimacy of the Court. The lesson of Roosevelt and Brown further provide that this reform must be done with a deep knowledge of the public understanding of the Court.
When the Court decided Brown v. Board of Education, Roosevelt's court packing attempt was within living memory, and strongly influenced reactions to the Court's decree that American schools must integrate. Members of the public and southern lawmakers capitalized on Roosevelt's attacks on the Court, rearticulating those claims to cast doubt on the legitimacy of Brown. Other opponents of integration argued that Roosevelt had succeeded in packing the Court (if by less direct means), and that the Brown Court did not legitimately have the authority to determine constitutional law. Both lines of argument proliferated through the media, reducing public acceptance of the Brown decision.
The impacts of Roosevelt's court packing attempt, however, went beyond questions about the legitimacy of the Court. Roosevelt had another legacy in authoring a playbook of strategies for manipulating both state and federal courts. The public and southern lawmakers attacked Brown by employing these strategies, often directly claiming validity for their actions by way of Roosevelt's endorsement.
In the decades when Roosevelt's court packing attempt remained in lived memory, Brown was never going to fully succeed in the South, where it did not have the majority support of the population. The Court simply did not have the power to demand public acquiescence or sway
public opinion. This understanding of the Court's power matters today, as both court packing and court reforms are brewing in American politics. Any future changes must be done with a nuanced understanding of how the public will view the Court and what precedents we set that will be mirrored at the state level.
On what Civil Rights groups thought of Court-packing in 1937, see Zach Jonas, “FDR’s Court-packing and the Struggle for Civil Rights,” Journal of Supreme Court History (July 2023).
--Dan Ernst
