When Franklin Roosevelt tried to "Pack" the Supreme Court

 Michael Streich

 The Election of 1936 gave Franklin D. Roosevelt and the Democratic Party a resounding victory. FDR carried 46 of 48 states and Democratic majorities in the Congress swelled. Roosevelt saw the victory as an opportunity to confront the US Supreme Court, the last bastion of conservatism. In 1935 the high court had invalidated the NIRA and in 1936 the AAA. FDR was acutely aware that the court could well invalidate the Social Security Act and the National Labor Relations Act, two pillars of New Deal legislation. Roosevelt resolved to reorganize the court.

 

Democrat Opposition to the Court

 

At issue was the courts power of judicial review. Of the nine justices, the so-called “Four Horsemen,” James McReynolds, Pierce Butler, Willis Van Devanter, and George Sutherland joined to invalidate New Deal legislation. The swing vote in crucial cases had been Owen Roberts. Leading Democrats floated several proposed Constitutional amendments that all had a similar goal: deprive the court of judicial review.

 

President Roosevelt, however, felt that an amendment would take too much time. His plan, amounting to little more than “court packing,” would expand the court to fifteen and allow him to appoint a new justice whenever a member of the high court reached the age of seventy and refused to retire.

 

FDR injected the issue of age and this was unfortunate. Justice Brandeis was the oldest member of the court but he was also the most liberal. Owen Roberts, the swing vote, was under the age of seventy.

 

A Switch in Time Saves Nine

 

Roosevelt’s plan split the Democrats. In the Senate, Judiciary Chairman Joseph Robinson led the fight to change the court but was opposed by Burton Wheeler and Carter Glass, two powerful Senators. The Republican strategy was to remain silent and allow the Democrats to fracture. The general public saw Roosevelt’s actions as a direct attack on the Constitution.

 

The general perception was that the number of justices, fixed at nine since 1869, was somehow sacred. Even the Catholic Church criticized the plan, comparing the high court’s power with papal infallibility. Congressmen dealt with a tidal wave of constituent letters, mostly critical of the proposed change.

 

By the summer of 1937, the issue was resolved after a series of incidents made court reorganization redundant. The Supreme Court began to validate New Deal legislation with Justice Roberts joining the liberal members. Historian William Leuchtenburg maintains that Roberts was following the will of the people based on the 1936 election. Others have stressed Roberts’ sincere change of principle based on his understanding of the Constitution. [1]

 

Leuchtenburg relates an intriguing story that involves Republican Senator William Borah of Idaho, walking across the hall in his apartment house and knocking on his neighbor’s door, Associate Justice Van Devanter. After a brief conversation, Borah returned to his own apartment but Van Devanter would resign from the court the next day. This gave FDR his first appointment to the high court: Senator Hugo Black of Alabama.

 

The final derailment of Roosevelt’s plan came with the sudden death of Senator Robinson. The Judiciary Committee rejected the reorganization bill, stating that it was, “in direct violation of the American Constitution.” The Committee also suggested that the bill would undermine “the independence of the Courts.”

 

Roosevelt’s court packing scheme ultimately redirected the philosophy of the high court by embracing liberal nationalism. Additionally, the in-party disagreements would fracture Democratic Party unity and pave the way for Republicans to stage a slow comeback.

 

[1] See William E. Leuchtenburg, “Franklin D. Roosevelt’s Supreme Court ‘Packing’ Plan,” Essays on the New Deal, Harold Hollingsworth and William F. Holmes, Editors. (Austin: University of Texas Press, 1969)

 

See also:

 

Alfred H. Kelly and Winfred A. Harbison, The American Constitution: Its Origins and Development (New York: W.W. Norton and Company, 1976) p.714-718.

Copyright of this article owned by Michael Streich; any reprints require written permission.