The confirmation battle over Judge Amy Coney Barrett is bringing the issue of Court-packing into public discussion for the first time since FDR’s failed effort in 1937 — as Adam Liptak’s NYT piece today reflects. If this issue gains traction after the election, the “lesson” of FDR’s failure will inevitably play a central role.

I wrote about that question several years ago, in an academic article titled Is the Supreme Court a ‘Majoritarian’ Institution? Here is a modified version of that discussion:

“The lesson of 1937” is central to modern American constitutional history, as well as to the self-understanding of constitutional law and theory today. But what exactly is that lesson?

The conventional takeaway [reflected in Adam Liptak’s piece] is that FDR lost the battle, but won the war. His Court-packing plan failed, but the Court soon stopped invalidating New Deal legislation. Generalizing from this account, scholars have argued that the Court is not a counter-majoritarian institution, but tends to fall in line with prevailing public opinion (a brief digression: were this true, one wonders why fights over appointments to the Court are among the most significant political battles of recent years).

But by focusing too narrowly on the Court alone, the conventional story that FDR won that battle misses the far more important point: the political backlash against the Court-packing plan ended the New Deal — and the progressive policy agenda did not recover until 1964.

The most significant study of the Court-packing fight, Jeff Sheshol’s superb 2010 book, Supreme Power: Franklin Roosevelt vs. the Supreme Court, portrays the full political context — and consequences — of this battle.

First, the Court’s challenge to the political branches in the 1930s was breathtaking, far beyond anything we have seen in more recent decades. Many people are aware of the major highlights–the Court’s invalidation of the National Industrial Recovery Act (NIRA) or the Agricultural Adjustment Act (AAA).

But consider the range of national and state legislation or Presidential action the Court held unconstitutional in one seventeen-month period starting in January, 1935: the NIRA, both its Codes of Fair Competition and the President’s power to control the flow of contraband oil across state lines; the Railroad Retirement Act; the Frazier-Lemke Farm Mortgage Moratorium Act; the effort of the President to get the administrative agencies to reflect his political vision (Humphrey’s Executor); the Home Owners’ Loan Act; a federal tax on liquor dealers; the AAA; efforts of the new SEC’s attempt to subpoena records to enforce the securities laws; the Guffey Coal Act; the Municipal Bankruptcy Act, which Congress passed to enable local governments to use the bankruptcy process; and, ultimately in Morehead v. Tipaldo, minimum-wage laws on the books in a third of the states, in some cases, for decades (some of these decisions have withstood the test of time, but most, of course, have not).

In the summer of 1935, more than 100 district judges held Acts of Congress unconstitutional, issuing more than 1,600 injunctions against New Deal legislation. Moreover, at least some of these issues cut to the bone of the average person; a window into the salience of the Court’s actions is provided in the comments of the founder of the ACLU, at a town meeting, who said: “Something is seething in America today. . . . We are either going to get out of this mess by a change in the Court or with machine guns on street corners.”

In that context, FDR put forth his Court-packing plan as the first piece of legislation after he had just won the biggest landslide in American history. Yet even so, resistance to FDR’s Court-packing plan was vehement, geographically widespread, and bipartisan. The legislation was in dire shape politically long before the Court’s famous “switch in time” took the last wind out of that effort.

Two-thirds of the newspapers that had endorsed FDR came out immediately and vociferously against the plan. The most common charge was that FDR was seeking “dictatorial powers,” a particularly resonant charge. Telegrams to Congress, a leading gauge of public opinion at the time, flowed overwhelmingly, and with passionate intensity, against the plan. Some leading Progressive Democrats in the Senate, like Hiram Johnson and George Norris, quickly bolted from FDR and defended the Court’s independence; conservative Democrats wanted no part of the plan; a leading Western Democrat, Senator Wheeler, announced he would lead the fight against the plan; FDR’s Vice President did little to conceal his disdain for Court packing; Republicans sat silently and let the Democratic Party tear itself apart. And the Court, too, has tools to fight back: Chief Justice Hughes sent a letter, with devastating effect, to the Senate Judiciary committee that took apart FDR’s justifications for Court-packing.

We cannot know, of course, whether FDR would ultimately have prevailed, had the Court’s decisions not started to change course. But more remarkably, here was the most popular President in history, with a Congress his party controlled overwhelmingly, confronted by the most aggressive Court in American history – and yet, it is likely that FDR’s legislative challenge to the authority of the Court would have failed, given how deep the cultural and political support was for the Court’s institutional role. That remained so even as the Court issued one unpopular decision after another.

But even more importantly, who actually “won” the Court-packing fight? As I’ve noted, the conventional wisdom among constitutional academics, focused narrowly on the Court itself, is that FDR lost the battle, but won the war, because the Court (assisted by 7 FDR appointments between 1937-43), acceded to the New Deal’s constitutionality. But FDR’s legislative assault on the Court destroyed his political coalition, in Congress and nationally, and ended his ability to enact major domestic policy legislation — despite his huge electoral triumph just a year before in 1936.

As a Fortune magazine poll in July 1937 put it: “The Supreme Court struggle had cut into the President’s popularity as no other issue ever had.” National health-care, the next major item on FDR’s agenda, faded away. The progressive domestic policy agenda did not recover until 1964. Reflecting back, FDR’s second Vice President, Henry Wallace, observed: “The whole New Deal really went up in smoke as a result of the Supreme Court fight.”