LETTER: The GOP and court packing

I would not presume to tell Victor Davis Hanson about the classics in which he specializes, but he might want to learn a little more American history, as in when he talks about Franklin Roosevelt trying to “pack” the Supreme Court in 1937 and how it was a typical liberal Democratic measure (May 8 commentary). It isn’t the only time that happened.

In 1870, the Supreme Court ruled in Hepburn v. Griswold that the U.S. government could coin money but had no constitutional right to print legal tender that would then be used to pay pre-existing debts. A year before, Congress had voted to expand the size of the Supreme Court from seven to nine justices. As Hepburn came down, President Ulysses Grant appointed two new justices, who joined the dissenters to form a new majority in the legal tender cases, which overturned a recent precedent.

Because there were no confirmation hearings and the other evidence is debatable, we cannot know whether the new appointees were asked whether Hepburn was “settled precedent.” We do know that the earlier legislation to reduce the court’s size to keep President Andrew Johnson from being able to make an appointment, and the legislation to expand it, were the work of the Republican Party in Congress.

If Mr. Hanson and his fellow occupants of the right want to claim to be the same party today that they were more than 150 years ago, they also have to claim to have done some court-packing themselves.