Bar Bulletin

Bar Bulletin

President's Page: Court Packing – Then and Now

May 2021 Bar Bulletin

Almost 85 years ago, President Franklin Roosevelt addressed the nation during one of his famous “fireside chats.” He often used those messages to speak directly to Americans and to buck up a country reeling from massive unemployment, homelessness and economic hardship.

But on March 9, 1937, as millions of Americans listened on their home radios, he decried the U.S. Supreme Court as having “improperly set itself up as a third House of the Congress” and was thus in need of “a continuing stream of new and younger blood.”

Just as some say Twitter may define the presidency of ex-president Donald Trump, those personal style radio addresses defined Franklin Delano Roosevelt.

And President Roosevelt’s argument that day was just as disingenuous as many of Trump’s tweets, although he lacked Trump’s penchant for bullying, self-promotion and outright mendacity.

Stung by court rulings tossing three New Deal programs on constitutional grounds, FDR sought to stack the Supreme Court with new appointments in order to further his policy agenda. Roosevelt proposed the Judicial Procedures Reform Bill of 1937 which would have added a new seat on the Supreme Court each time a justice reached age 70 and failed to retire.

Few bought the President’s claim the court lacked adequate resources, and in the end even Vice President John Nance Gardner openly opposed Roosevelt’s plan to game the system by awarding himself new appointments to the Supreme Court.

FDR’s scheme infamously earned the moniker of “court packing,” which is why President Biden’s commission studying “the membership and size of the court” should similarly end in the dustbin of history. But history isn’t so dusty that we should forget the New Deal helped to bring America out of the Great Depression, and an unchanged Supreme Court pivoted to allow as constitutional other key Roosevelt programs. It began with a surprising vote supplied by Justice Owen Roberts in a Washington minimum wage case, West Coast Hotel Co. v. Parrish, in which the Supreme Court began slowly to evolve, supporting the wisdom of playing by the rules.

President Biden and certain Democrats in Congress would do well to familiarize themselves with this chapter of American history.

Recently, however, King County Superior Court Presiding Judge Jim Rogers sounded the call for a very different kind of court packing. And this time, the call makes sense and would serve the common good.

Here’s the problem — and the proposed solution.

COVID-19 forced the closure of our courts, including all criminal and civil matters for many months. Now, as courts reopen and in spite of leading the nation in court innovations with Zoom hearings and even Zoom trials, we face an enormous backlog of cases.

Because our state and federal constitutions mandate speedy trials for persons accused of crimes, we are required by law to address those cases first. As many of you are painfully aware, this has caused motions to be delayed and civil hearings and trials postponed for months and months. Worse, COVID-19 has caused accused and convicted persons to be confined in jails and prisons where the virus has preyed on the incarcerated, killing many.

As Judge Rogers pointed out in his April 7 Seattle Times Op-Ed, King County has more than 225 pending murder cases, up from 140 before the COVID-19 shutdown. Any criminal case is serious, particularly where the defendants face jail or prison time and victims and their families await justice. But, as Judge Rogers wrote, “If you add up robbery, assaults with a gun involving serious injury, domestic violence involving strangulation or other forms of assault, the cases total more than 3,000, more than twice the number from last year.” He added, “When we send out a homicide case now, the typical defendant has been in jail two to three years.”

How can we respond to this crisis?

First, Congress, the Legislature and County Council must recognize that among all of our post-pandemic needs, King County’s justice system requires temporary but significant financial resources.

Second, as Judge Rogers proposes, we must temporarily expand trial courts utilizing retired judges, public defenders, prosecutors and victim advocates.

Just as the retired nurse came back to Fred Hutch to push a needle and vaccine into my grateful arm, we need our retired colleagues to answer the call for the protection of our constitutional rights. This will require emergency funding, but without it, the pandemic backlog in our courts will be with us for years and years, and we cannot afford the consequences.

That would mean leaving more accused languishing in jails. It means more mental health hearings will be delayed and protection orders left un-entered. We’ll see civil disputes pending endlessly in spite of evident violation of contract and other rights.

Our justice system is meant as a substitute for violence and the predominance of those with power abusing it over those with little or no power. Failing to heed the call for post-pandemic court resources risks sending a dangerous message that the rule of law is less important than opening restaurants and gyms.

The King County Superior Court plan for temporary growth is the kind of “court packing” we should all support. 

John McKay is the President of the King County Bar Association and a partner at Davis Wright Tremaine. He can be reached at johnmckay@dwt.com.

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