A similar moment came during the election of 1912, which was, fundamentally, a referendum on the Courts and constitutionalism. Some political scientists see the current anti-court movement as an heir to 1912 and the Bull Moose attack upon the courts.
Actually, 1937 was the Bull Moose's heir, as UnbelievingScumOnTheOtherSide points out, in that, like 1912, it was a protest against conservative courts, whereas today's is a protest against liberal courts. Nonetheless, the ideas and solutions tossed about are ultimately the same: let the majority decide, through legislatures, referenda, etc.
As in 1912, those remain bad ideas.
For a study of 1912's situation, see my:
: .pdf fileSee TR's "New Nationalism" and "Charter of Democracy" speeches from the period (discussed in the paper.) I'll leave you with this comment by Taft on Theodore Roosevelt's anti-court diatribe in his "New Nationalism" speech:
The Constitution's Bodyguard: William Howard Taft and His Defense of the Constitution During the Election of 1912
I am the last one to withhold criticism from Supreme Court decisions, and in the two that Roosevelt selected for his criticism I fully agree with him .... The whole difficulty about the business is that there is throughout the West, and especially in the Insurgent ranks to which Theodore was appealing, a bitterness of feeling against the Federal Courts that this attitude of his was calculated to stir up, and the regret which he certainly expressed that courts had the power to set aside statutes was an attack upon our system at the very point where I think it is the strongest. Indeed, my fear is that in this regard he simply spoke the truth as to his own views.[Sorry, x, me again. I've stayed away from these threads, but this one is especially thoughtful on all sides of the debate.]
"As in 1912, those remain bad ideas."
That is why I posted FDR's argument. I was seeing people, on Free Republic of all places, making the same points FDR did. I think that any judge sworn to uphold the Constitution ought do exactly that when faced with a conflict between an act of Congress and said Constitution. I do not think they should substitute their own policy preferences for the words of that document; but to remove their check on an overreaching Congress is a remedy worse than the ill it seeks to cure.
Perhaps, for those opposed to judicial review, reading that concurrence from a notoriously leftist President will cause them to reconsider.
Here are three possible remedies that might not be harmful:
1) Inform juries of their power to apply the Constitution, regardless of the trial judge's opinion. This would give the people a more direct ability to hold their government to the limits imposed by that Constitution.
2) Nominate, appoint, or elect, whenever possible, judges at every level who will base the their judgments on a hierarchy of written law, with the U.S. Constitution at the top. Impeach them if they rule outside the law. Apply the same criteria when choosing members of the Legislative and Executive branches. They are all supposed to be bound by the Constitution; they swear oaths to that effect. We ought to hold them to it.
3) Another poster mentioned that the "living Constitution" doctrine is taught in law schools. This needs to stop. Do they also teach "living contracts" whose terms are mutable? If not, pointing out the contradiction should be helpful.
The first remedy should be the easiest, the last the hardest, but we should make the effort on all three.