The threat alone motivates progressive governance.
McCarthy ’21 [Andrew; April 14; senior fellow at National Review Institute; the Hill, “Biden’s court-packing theater could tame the Supreme Court’s conservatives,” https://thehill.com/opinion/judiciary/547782-bidens-court-packing-theater-could-tame-the-supreme-courts-conservatives/]
But that’s a half-truth. The other half of the story, the inconvenient history, is that the court-packing threat worked.
Sure, Roosevelt didn’t get his additional bench slots to fill. But that was not the main objective of the threat. FDR wanted his program. And he got it.
The court-packing threat failed only as an ambitious artifice to alter the make-up of the judiciary. It succeeded in intimidating the Supreme Court into a retreat from its protection of economic liberty against progressive aspirations to regulate American industry. As debate raged over the failed court-packing proposal, the court executed its “switch in time that saved nine,” the notorious volte-face in which previously untenable regulatory regimes were suddenly green-lighted under the guise of promoting “the health, safety, morals and welfare of the people” — as the court put it in West Coast Hotel Company v. Parrish (1937).
The rest, to coin a phrase, is history: Nearly a century of the Supreme Court’s erosion of structural constraints on government power, especially at the federal level, and the consequent turbo-charging of progressive governance.