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Court-packing plan

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Description: President Franklin D. Roosevelt's proposal to enlarge the federal judiciary in order to liberalize the Supreme Court and protect New Deal legislation.


Significance: In the proposal's wake, the Court accepted the New Deal's expansion of government power, but Roosevelt lost congressional support and later New Deal social reform was derailed.


Franklin D. Roosevelt inherited a Republican-dominated federal judiciary when he became president in 1933 and had no opportunity to appoint a new justice during his first term. The Supreme Court then consisted of three liberal justices, two moderates, and four conservatives, with six of these justices over seventy years of age. The nation's economy was still suffering the effects of the Great Depression, and Roosevelt developed a set of New Deal programs designed to boost the economy through legislation and government regulation of business and industry. In 1935 the Court began to reject New Deal legislation as giving unconstitutional powers to the federal government. These decisions were frequently divided, with moderate Justice Owen J. Roberts creating a majority by voting with the conservatives. In January of 1935, the Court rejected provisions of the National Industrial Recovery Act (NIRA) by an 8-1 vote. In May, the Court ruled five to four that the Railway Retirement Act of 1934 was unconstitutional. On May 27, a day known as Black Monday, the Court unanimously invalidated the code-making and price-fixing powers of Title I of the NIRA in Schechter Poultry Corp. v. United States, struck down the Frazier-Lemke Farm Bankruptcy Act of 1934 in Louisville Joint Stock Land Bank v. Radford, and voided presidential removal of regulatory commission members in Humphrey's Executor v. United States. The Court's 6-3 decision in United States v. Butler (1936) revoked the processing tax set up by the Agricultural Adjustment Act of 1933. During the spring of 1936, a divided Court announced its decision in Carter v. Carter Coal Co., declaring the Guffey Coal Act of 1935 unconstitutional, and its decision in Morehead v. New York ex rel. Tipaldo, invalidating New York State's minimum-wage law. These rulings appeared to threaten the existence of Social Security, the National Labor Relations Act of 1935 (Wagner Act), and many other New Deal innovations.


Roosevelt's Response

Roosevelt had been considering how to deal with the Court's resistance since January, 1935, when, in the Gold Clause Cases, it appeared as if the Court might overturn Congress's voiding of bond clauses pledging redemption in gold, which had provided the basis for devaluation and currency regulation. Immediate response became unnecessary when the Court ruled favorably on February 18, but the idea of restraining the Court took root. After Schechter, Roosevelt said, “We have been relegated to the horse-and-buggy definition of interstate commerce,” causing a public uproar. He began to consider a constitutional amendment that would either give Congress new powers or limit the Court's power. Attorney General Homer Cummings, however, insisted that the problem lay with the Court's current composition. He suggested an increase in the number of justices to create a favorable majority or an amendment requiring retirement at age seventy. In early 1936, Roosevelt came to agree that an amendment would be too difficult to frame, too slow and difficult to pass, and too open to interpretation by the Court. He also was unwilling to propose a remedy during a presidential election year.


The Plan

After his 1936 electoral landslide, Roosevelt was ready to act. Cummings developed a plan linking the number of justices over age seventy with new appointments to the Court, thus establishing a principle to legitimize Court packing. On February 5, 1937, Roosevelt submitted a judicial reform bill; at its heart was a proposal to give his office power to appoint a new federal judge or justice for every one with ten years’ service who did not retire within six months after his seventieth birthday. Up to six new Court positions could be established and forty-four on the lower federal tribunals. Roosevelt justified this measure by arguing that aging judges could not keep up with the workload and that additional appointees would help clear out overcrowded federal court dockets, decreasing delays and expense to litigants. However, his intention to create a pro-New Deal Court majority was obvious. In March, he began instead to emphasize the necessity of bringing in younger justices who understood modern facts and circumstances and who would not undertake to override legislative policy. The proposal was not unconstitutional; Congress had changed the Court's size several times during the nineteenth century. However, Roosevelt's open grab for power provided an opportunity for closet conservatives, previously afraid to attack the New Deal, to criticize him, charging him with attempting to move toward absolute power. Although moderates and liberals disagreed, many feared the precedent would allow later abuse by a reactionary president. Republicans let the Democrats lead the public opposition, hoping to profit from the split within the president's party. Despite opposition, the proposal seemed headed for adoption until a series of surprising Court actions. On March 29, in West Coast Hotel Co. v. Parrish (1937), the Court announced a 5-4 decision upholding a Washington state minimum-wage law similar to that struck down in Tipaldo, Justice Roberts voting with the majority. This decision had been completed before the Court-packing proposal, so Roberts's “switch in time that saved nine” was not a response to the president's threat but an acknowledgment of the election results. The Court upheld the Wagner Act in a series of 5-4 decisions on April 12, including National Labor Relations Board v. Jones and Laughlin Steel Corp. (1937). On May 18, conservative Justice Willis Van Devanter announced his intention to retire. The Court's decisions on May 24 in Helvering v. Davis (1937) and Steward Machine Co. v. Davis (1937) upheld Social Security.


The End and Aftermath

Given the Court's ideological repositioning, many politicians believed the Court-packing proposal was now unnecessary. Roosevelt, however, argued that it was still essential, despite the Senate Judiciary Committee's adverse report on the bill and bitter Senate debate. The bill was revised to authorize the appointment of one additional justice each year for each justice who remained on the Court after age seventy-five. The efforts of majority leader Joseph Robinson, expected to be Roosevelt's first Court appointee, made it appear possible in late June that the bill would pass. However, after Robinson died on July 14, the Senate voted seventy to twenty to send the bill back to the Judiciary Committee for further review. It never reemerged. The Court-packing issue exacted a huge toll. It weakened the New Deal coalition and helped create a conservative coalition of Republicans and southern Democrats that blocked most liberal legislation from 1937 onward. However, Roosevelt (who ultimately appointed eight new justices) had permanently altered the constitutional interpretation of the Court, which from that time accepted a vast expansion of the power of government in American life.



Further Reading

  • Hall, Kermit L. The Least Dangerous Branch: Separation of Powers and Court-Packing. New York: Garland, 2000.
  • Kyvig, David. “The Road Not Taken: FDR, the Supreme Court, and Constitutional Amendment.” Political Science Quarterly 104 (Fall, 1989): 463-481.
  • Leuchtenburg, William E. The Supreme Court Reborn: The Constitutional Revolution in the Age of Roosevelt. New York: Oxford University Press, 1995.
  • McDowell, Gary L. Curbing the Courts: The Constitution and the Limits of Judicial Power. Baton Rouge: Louisiana State University Press, 1988.
  • McKenna, Marian C. Franklin Roosevelt and the Great Constitutional War: The Court-Packing Crisis of 1937. New York: Fordham University Press, 2002.
  • Nelson, Michael. “The President and the Court: Reinterpreting the Court-Packing Episode of 1937.” Political Science Quarterly 103 (Summer, 1988): 267-293.