ABSTRACT
Ask anyone to name episodes in history that illustrate the far-reaching significance of the relationship between the presidency and the courts, and most likely the answer will be 1) Franklin D. Roosevelt’s (FDR’s) unsuccessful effort in 1936 to persuade Congress to pass legislation that would allow him to “pack” the Supreme Court by increasing the number of justices relative to those over 70 years of age, and 2) the 5-4 Supreme Court decision in Bush v. Gore in December 2000 that halted the recount in Florida of that state’s popular vote in the 2000 presidential election. Both of these were spectacular historical events that marked the outer limits of that inter-branch relationship. If Congress had granted Roosevelt’s request to provide him with authority to nominate additional justices beyond the existing nine-member court under the specific circumstances at that time, it would have collaborated in a blatant presidential attempt to change the direction of Supreme Court decisions on the fate of Roosevelt’s New Deal legislation, and, thus, undermined the independence of the federal judiciary.1 Similarly, permitting the outcome of a presidential election to rest solely in the hands of nine Supreme Court justices is an extraordinary leap of faith for a nation, straining the democratic, self-governing principles upon which our system was founded.2
