Supreme Court-Packing Fight Summary

  • Last updated on November 10, 2022

When the executive and judicial branches of the U.S. government confronted each other over social legislation, a battle to pack the Supreme Court ensued. President Franklin D. Roosevelt was ultimately able to name eight justices and one chief justice to the Court, but in the process he catalyzed the creation of an anti-New Deal coalition that stymied many of his later efforts at social reform.

Summary of Event

In November, 1936, President Franklin D. Roosevelt was returned to office by one of the widest election margins in history. Even conservative journalists spoke of a mandate for further New Deal reform. Indeed, the president’s second inaugural address spoke of the problems with “one-third of a nation ill-housed, ill-clad, ill-nourished.” In what was a surprise to many, including some members of his own party, however, the president’s first message to Congress on February 5, 1937, called not for social programs but for adjustments to the U.S. Supreme Court. By July, 1937, the president had been defeated in his attempts to reorganize the Court, and he was faced with the growing disintegration of congressional support for his other legislative initiatives. [kw]Supreme Court-Packing Fight (Feb. 5-July 22, 1937) [kw]Court-Packing Fight, Supreme (Feb. 5-July 22, 1937)[Court Packing Fight, Supreme (Feb. 5 July 22, 1937)] [kw]Packing Fight, Supreme Court- (Feb. 5-July 22, 1937) [kw]Fight, Supreme Court-Packing (Feb. 5-July 22, 1937) Supreme Court, U.S.;Court-packing fight[Court packing fight] [g]United States;Feb. 5-July 22, 1937: Supreme Court-Packing Fight[09400] [c]Government and politics;Feb. 5-July 22, 1937: Supreme Court-Packing Fight[09400] [c]Laws, acts, and legal history;Feb. 5-July 22, 1937: Supreme Court-Packing Fight[09400] Roosevelt, Franklin D. [p]Roosevelt, Franklin D.;Supreme Court packing fight Cummings, Homer S. Hughes, Charles Evans Roberts, Owen J. Robinson, Joseph Taylor Wheeler, Burton Kendall

The Court that sat in judgment on Roosevelt’s reform measures consisted of pre-New Deal appointees. Roosevelt had not had an opportunity to appoint a single justice during his first term. James C. McReynolds, McReynolds, James C. George Sutherland, Sutherland, George Willis Van Devanter, Van Devanter, Willis and Pierce Butler Butler, Pierce (known as the Four Horsemen) were all staunch conservatives who considered private property sacred and laissez-faire the best policy. The liberal wing of the Court consisted of Louis D. Brandeis, Brandeis, Louis D. Benjamin N. Cardozo, Cardozo, Benjamin N. and Harlan Fiske Stone. Stone, Harlan Fiske Chief Justice Charles Evans Hughes and Associate Justice Owen J. Roberts were both Republicans, and although they did not share the uncompromising laissez-faire attitude of the conservative bloc, they were reluctant to see an expansion of government involvement in the economy.

However, in 1935, the Court delivered a series of decisions that virtually overturned the early New Deal’s recovery programs. In January, the Court, by a vote of eight to one, invalidated parts of the National Industrial Recovery Act National Industrial Recovery Act (1933) (NIRA). At that point, the president was ready to attack the Court’s power of judicial review publicly as “unconscionable” if the justices ruled against the government’s power to regulate the currency in the Gold Clause cases. Confrontation was temporarily averted when the Court sustained the administration’s monetary policy by a vote of five to four. Three months later, the Court, in a five-to-four division, declared the Railway Retirement Act of 1934 unconstitutional. New Dealers feared that their programs would be destroyed by a narrowly divided Court, especially if Justice Owen Roberts, an unpredictable jurist, had permanently joined the conservatives.

Their worst fears were confirmed when, on May 27, a day that became known as Black Monday, Black Monday New Deal;Supreme Court, U.S. the Court handed down three unanimous antiadministration decisions. In Louisville Bank v. Radford, Louisville Bank v. Radford (1935) the justices declared the Frazier-Lemke Act (Farm Bankruptcy Act), which provided mortgage assistance to farmers, unconstitutional. The Court limited the president’s power to remove members of regulatory bodies in Humphrey’s Executor v. United States, Humphrey’s Executor v. United States (1935)[Humphreys Executor v. United States] and in Schechter Poultry Corporation v. United States, Schechter Poultry Corporation v. United States (1935) it found that the NIRA was unconstitutional because of an illegal delegation of legislative authority to the executive branch of the government in the form of code-making procedures. In the last of these cases, the Court also narrowly defined Congress’s power to regulate interstate commerce. In a press conference, Roosevelt criticized the ruling, calling it a “horse-and-buggy definition of interstate commerce.” Also, to some advisers he expressed a brief interest in a constitutional amendment that would limit the Court’s power of judicial review.

In early 1936, in United States v. Butler, United States v. Butler (1936) the Court ruled that the Agricultural Adjustment Act Agricultural Adjustment Act (1933) (AAA) was also unconstitutional. In a six-to-three decision, the Court held that the AAA involved an illegal use of federal taxing power. Finally, during the summer of 1936, in the Tipaldo decision, the Court struck down a New York State minimum wage law by a five-to-four vote in terms that seemed to indicate that the National Labor Relations Act (Wagner Act) National Labor Relations Act (1935) Wagner Act (1935) and the recently passed Social Security Act Social Security Act (1935) were both in danger. The president accused the Court of creating a regulatory “no man’s land,” where neither states nor the federal government was allowed to function.

Editorial cartoon published in March, 1937, ridicules President Franklin D. Roosevelt’s efforts to reorganize the Supreme Court to protect his New Deal programs.

(FDR Library)

During 1936, more than one hundred bills that would curb the Court’s power were introduced in Congress without Roosevelt’s endorsement. Even before the election of 1936, Roosevelt had undoubtedly decided to take some action to protect his program from judicial nullification. His advisers believed that it was an opportune time to act, but there was disagreement about the best method to employ. A constitutional amendment was rejected because it would be too difficult to draft and ratification would take too long. Change needed to occur before the Court had an opportunity to decimate more New Deal programs.

Roosevelt was convinced that the real problem with the Court was one of personnel. The method finally selected was designed to foil the conservative bloc by an outflanking strategy. Ironically, it incorporated an approach once advocated by Justice McReynolds, the most intractable of the Four Horsemen on the Court. The administration bill, which was drawn up by Attorney General Homer S. Cummings, provided that whenever a federal judge failed to retire after reaching the age of seventy, the president could appoint a new judge to that bench. The number of new appointments, however, was limited to six on the Supreme Court and forty-four in the lower federal courts. The chief attraction of this plan, according to Roosevelt, was that it emphasized efficiency in the entire federal judicial system rather than singling out the high court or dwelling on politics and personalities. The president made reference to the overcrowded dockets of the federal courts and the resulting expense and delay to litigants. He claimed that younger judges could handle the courts’ business with more vigor and new vision. Although many people shared Roosevelt’s frustration with the Court, opposition to the bill developed immediately from Republicans, anti-New Deal Democrats, members of the bar, and newspaper editors. More serious was the resistance from party regulars and liberals such as Senator Burton K. Wheeler.

Chief Justice Hughes soon made it clear to Senator Wheeler that the Court was not behind in its business. Wheeler had been a supporter of many New Deal measures in the past but was now heading the opposition to the bill from his post on the Senate Judiciary Committee. In addition, many elder statesmen resented the president’s oblique slap at people over the age of seventy. One of these was the most liberal member of the bench, Justice Brandeis, who was eighty years old. Helping to strengthen this opposition were the incredibly clumsy political tactics employed by the administration. Keeping even the floor leaders in ignorance until the last minute, Roosevelt did little to prepare Congress for the measure. Finally, the administration was surprised at the level of reverence many Americans expressed for the judiciary as a guardian of personal liberties and the separation of powers.

In the midst of the debate, the Supreme Court itself spoke out in a manner that did much to undermine the president’s already faltering support in Congress. In March, 1937, in West Coast Hotel Company v. Parrish, West Coast Hotel Company v. Parrish (1937) the Court, in a move that appeared to reverse its Tipaldo ruling, upheld a Washington state minimum wage law by a five-to-four vote. In April, National Labor Relations Board v. Jones & Laughlin Steel Corp. National Labor Relations Board v. Jones & Laughlin Steel Corp. (1937) upheld the Wagner Act by the same margin. On May 24, 1937, the Court upheld the Social Security Act in all particulars. It was clear that at least one member of the court, Justice Roberts, had shifted from opposition to support of the New Deal legislation. Roberts’s move, which appeared to seal the doom of the Court-packing bill, is often referred to as “the switch in time that saved nine.”

In addition, Justice Van Devanter announced his plans to retire. Roosevelt would at last be presented with the opportunity to nominate a member of the Court with a philosophy compatible with the New Deal, and presumably to assure approval of his legislation by a six-to-three margin.

While the president publicly announced his great satisfaction with the Court’s apparent change of ideology, the news actually helped to kill his floundering Court reform bill. He was also acutely aware of the dissension the bill was creating within the Democratic Party. The Court reform bill gave conservative Democrats (who had been temporarily intimidated by the Depression) an opportunity to take a popular stand and at the same time to free themselves from the irritating confines of the presidential directions. When Senate majority leader Joseph Taylor Robinson of Arkansas, who was guiding the bill through Congress, died suddenly, the future of the legislation became hopeless. On July 22, 1937, the Senate sent the bill back to committee. It was never seen again.


If the public was initially surprised at Roosevelt’s “Court-packing” proposal, the idea of judicial reform had long appealed to some members of the administration. A number of considerations led to Roosevelt’s decision to place judicial reorganization ahead of social legislation. The Supreme Court, as then composed, favored a conservative interpretation of the U.S. Constitution, but the president and others had hoped that the Court would make allowances for the emergency atmosphere when considering New Deal legislation.

Many historians have commented that Roosevelt lost the battle over the Court-packing law but won the war to achieve a more compatible Supreme Court. Before he left office, Roosevelt would name eight justices and one chief justice. In the process of winning the war, however, he may have lost his army, for after the court fight, an anti-New Deal coalition formed. After 1937, Roosevelt was never again able to count on widespread congressional support for his social reform programs. Supreme Court, U.S.;Court-packing fight[Court packing fight]

Further Reading
  • citation-type="booksimple"

    xlink:type="simple">Abraham, Henry J. Justices and Presidents: A Political History of Appointments to the Supreme Court. 3d ed. New York: Oxford University Press, 1992. This volume provides a basic discussion on the Court’s nomination process. Bibliography.
  • citation-type="booksimple"

    xlink:type="simple">Baker, Leonard. Back to Back: The Duel Between FDR and the Supreme Court. New York: Macmillan, 1967. Details the politics of the Court-packing fight.
  • citation-type="booksimple"

    xlink:type="simple">Burns, James Macgregor. Roosevelt: The Lion and the Fox. New York: Harcourt, Brace & World, 1956. Classic political biography of Franklin D. Roosevelt.
  • citation-type="booksimple"

    xlink:type="simple">Hall, Kermit L. The Magic Mirror: Law in American History. New York: Oxford University Press, 1989. A chapter on the New Deal-era Court puts it into the context of legal thought and culture.
  • citation-type="booksimple"

    xlink:type="simple">_______. The Oxford Guide to United States Supreme Court Decisions. New York: Oxford University Press, 1999. Multiauthored collection of essays on more than four hundred significant Court decisions, with supporting glossary and other aids.
  • citation-type="booksimple"

    xlink:type="simple">_______, ed. The Oxford Companion to the Supreme Court of the United States. New York: Oxford University Press, 1992. Provides a detailed and useful outline of the history of the Court, major decisions and doctrines that have guided and influenced Court rulings dating back to 1789, and brief biographies of every justice who has served on the Court as well as other historically significant characters. Concise but detailed entries help to make landmark cases and legal terms accessible to a variety of users.
  • citation-type="booksimple"

    xlink:type="simple">Irons, Peter. A People’s History of the Supreme Court. New York: Penguin Books, 2000. Chronicles the development of the Court and argues that its history is largely characterized by its tendencies toward discrimination on the basis of race, sex, and socioeconomic status, at least before the entrance of Chief Justice Earl Warren. The author’s passion injects new life into old arguments. Recommended.
  • citation-type="booksimple"

    xlink:type="simple">Leuchtenburg, William E. The Supreme Court Reborn: The Constitutional Revolution in the Age of Roosevelt. New York: Oxford University Press, 1995. The definitive study of the Court-packing battle.

Great Depression

Reconstruction Finance Corporation Is Created

Norris-La Guardia Act Strengthens Labor Organizations

Franklin D. Roosevelt Is Elected U.S. President

The Hundred Days

U.S. Civilian Conservation Corps Is Established

Roosevelt Signs the National Industrial Recovery Act

Works Progress Administration Is Established

Black Monday

Categories: History