Court‐packing Plan In February 1937 President Franklin D.
Roosevelt sent to Congress a bill to change the composition of the federal judiciary. This “court‐packing bill,” as it was promptly dubbed, was FDR's attempt to expand the membership of the Supreme Court so that he could nominate justices who would uphold the constitutionality of
New Deal legislation. The court‐packing struggle constitutes a critical episode in Roosevelt's presidency and one of the bitterest clashes between the judiciary and the executive in American history.
The appointment of conservative justices in the 1920s created a majority on the Supreme Court that held a restrictive view of federal regulatory power. In his 1932 election campaign, Roosevelt denounced the Court as too Republican. He feared that the justices would threaten many reform measures needed to deal with the Depression.
Despite cases in which the Court upheld reform legislation, the president received a shock on the so‐called
Black Monday, 27 May 1935, when the Court delivered three unanimous opinions that struck down key provisions of the New Deal recovery plan. In
Louisville Bank v. Radford, the Court declared unconstitutional an act that provided mortgage relief to farmers. In
Humphrey's Executor v. United States, the Court denied the president the power to replace members of independent regulatory agencies, thus thwarting his ability to bring the agencies in line with administration regulatory policies (see
Appointment and Removal Power). And in
Schechter Poultry Corporation v. United States the Court struck down the National Industrial Recovery Act, holding that Congress could not delegate such sweeping powers to an executive body (see
Delegation of Powers). The Court also held that the Schechters' poultry business was intrastate commerce and thus not subject to federal
commerce power. Roosevelt was troubled because the three liberal justices—Louis D.
Brandeis, Benjamin N.
Cardozo and Harlan F.
Stone—voted against the government's position. If the Court were to apply this approach to all regulatory issues, it would cripple the New Deal. At a press conference the next day Roosevelt denounced the Court for reverting to “the horse‐and‐buggy definition of interstate commerce.”
FDR avoided a direct confrontation with the Court during 1936 because he wanted to prevent giving Republicans a campaign issue in the presidential election that year. But the Court invalidated several more New Deal programs, including the Agricultural Adjustment Act and the National Bituminous Coal Act and a popular New York minimum‐wage statute (
U.
S. v.
Butler, 1936;
Carter v. Carter Coal Co., 1936;
Morehead v. New York ex rel. Tipaldo, 1936). The liberal justices in these cases dissented, and Chief Justice Charles Evans
Hughes had often sided with them, thus leaving Justice Owen
Roberts as the swing vote.
Following his landslide electoral victory, Roosevelt instructed his attorney general, Homer Cummings, to come up with a plan to provide a court majority that would uphold the constitutionality of his regulatory program. They rejected constitutional amendment as too slow a process and instead drew up a statute that would add one justice for every Supreme Court justice over age seventy, up to a total of six, as well as up to forty‐four lower court judges. FDR's rationale was that the older justices could not handle the volume of work, and the new justices would improve the courts' efficiency.
The court‐packing plan was a bombshell when Roosevelt announced it on 5 February 1937; a political firestorm ensued. Republicans, the leaders of the organized bar, Southern and moderate Democrats, and newspaper editors condemned the proposal. Even the liberal Supreme Court justices denounced the plan. Roosevelt, however, remained firm and appeared to have the votes in Congress.
In March, however, a 5‐to‐4 majority upheld a Washington minimum wage law that was almost identical to the one struck down the previous year (
West Coast Hotel Co. v. Parrish), as well as the constitutionality of the National Labor Relations Board (
NLRB v. Jones & Laughlin Steel Corp.). Justice Owen Roberts' shift, which journalists called the “switch in time that saved nine,” doomed the court‐packing legislation because Americans believed that FDR achieved his goals without tampering with tradition. Additionally, Justice Willis
Van Devanter announced that he would retire, providing Roosevelt five sympathetic votes even without Roberts. The president, however, would not abandon his plan. The sudden death of Senate floor leader Joe Robinson ended any hope the president's legislation had.
Roosevelt lost the legislative battle, but won the war. His reforms were thereafter upheld by the Supreme Court. The ramifications of the court‐packing controversy were significant. It shook the New Deal coalition that FDR had created, costing him the support of some Democrats, many in the middle class, and some Republicans as well. It augured an end to the social and economic reforms Roosevelt had begun. It reinforced the American people's understanding that law and politics should be separated, and that although the Supreme Court was not wholly above politics, it must not be converted into a political institution.
Bibliography
William E. Leuchtenburg , The Origins of Franklin D. Roosevelt's ‘Court‐Packing’ Plan, in The Supreme Court Review (1966) pp. 347–400.
William E. Leuchtenburg , Franklin D. Roosevelt's Supreme Court ‘Packing’ Plan, in Essays on the New Deal, edited by Harold M. Hollingsworth and William F. Holmes (1969), pp. 69–115.
Rayman L. Solomon
