President Franklin D. Roosevelt’s proposal to enlarge the federal judiciary in order to liberalize the Supreme Court and protect New Deal legislation.
Franklin D. Roosevelt
This editorial cartoon in the March 24, 1957, San Francisco Chronicle ridiculed President Franklin D. Roosevelt's effort to put into effect his New Deal programs.
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,
Roosevelt had been considering how to deal with the Court’s resistance since January, 1935, when, in the Gold Clause Cases
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
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.
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.
Butler, United States v.
Gold Clause Cases
Helvering v. Davis
Humphrey’s Executor v. United States
National Labor Relations Board v. Jones and Laughlin Steel Corp.
Roberts, Owen J.
Roosevelt, Franklin D.
Schechter Poultry Corp. v. United States