Supreme Court "Packing" Controversy

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After seeing important measures of the First New Deal repeatedly invalidated by the Supreme Court, President Franklin D. Roosevelt charged a small group of his advisors to devise a proposal that would increase the chances of future success. The result was the proposed Judicial Reorganization Act, which the president sent to Congress on February 5, 1937. One of the bill's provisions would have empowered the president to appoint to the Supreme Court an additional justice for each sitting justice who had not retired within six months after reaching the age of seventy. Six of the sitting justices were then over seventy, which would have enabled Roosevelt immediately to expand the Court from nine to fifteen justices. Though Roosevelt explained that the current justices were too aged to stay abreast of their work, it was widely recognized that the bill's true aim was to secure for the Roosevelt administration a sympathetic majority on the Court.

Such an effort to influence the Court's decisions was not novel. Comparable bills had made regular appearances in the legislative hopper since the 1890s, and a number of proposals to control the Court had been introduced in the wake of decisions invalidating New Deal initiatives in 1935 and 1936. None of these bills had gotten anywhere in Congress, and the support of an extremely popular president would not prove sufficient to secure for this proposal a different fate. Powerful opposition to the bill emerged almost immediately after its announcement. The press, leaders in higher education, and a variety of prominent civic organizations, including the American Bar Association, each denounced it. Eminent liberal spokesmen and former members of the administration also criticized the proposal. At the same time, crucial members of the New Deal coalition refused to rally to the president's cause. Organized labor issued official endorsements but otherwise sat on its hands, while key farm organizations actively campaigned in opposition. Meanwhile, the electorate that had so resoundingly returned Roosevelt to office the preceding November deluged Congress and the Court with letters and telegrams running nine to one against the proposal. Public opinion polls, while more closely divided, showed both consistent opposition to any proposal to enlarge the Court's membership and a steady decline in the president's popularity.


Roosevelt's more immediate concern, however, lay in shepherding the bill through Congress. He and his advisors had prepared the bill in secret, without consulting congressional leaders, and this left many of those leaders feeling alienated. So, for example, Vice President John Nance Garner was seen outside the Senate chamber shortly after the plan's announcement giving it the thumbs-down sign and holding his nose in distaste. Similarly disaffected was Hatton Sumners, the Democratic chairman of the House Judiciary Committee, who was provoked to take two steps. The first was to hustle a judicial retirement bill through Congress in hopes that he might persuade his colleagues to solve the problem of judicial obstruction simply by creating a financial incentive for the elderly conservative justices to leave the bench. The second was to assemble a comfortable majority of his committee in opposition to the president's proposal. Sumners's defection meant that the bill's opponents would control the committee hearings, and that the proposal might be bottled up in committee for an indefinite period. These circumstances persuaded the administration to take the unusual step of introducing the bill not in the typically compliant House, but instead in the Senate. But here, too, the obstacles were considerable. Unsurprisingly, every Republican senator quickly announced his opposition to the plan, as did a number of conservative Democrats. The opposition scored a coup when it secured the allegiance of Senator Burton Wheeler, a liberal Democrat from Montana. Wheeler became the opposition's leader, and recruited several fellow liberals to its standard, while a number of other key senators remained noncommittal or offered only nominal support. Within ten days of the plan's announcement, Roosevelt's secretary of the treasury, Henry Morgenthau, gave it at best a fifty-fifty chance of passage. Roosevelt's defense of the bill in a March 9 fireside chat did little to alter the dynamic. When the Judiciary Committee opened its hearings on March 10, its members were evenly divided, with two members undecided.

The opposition used the hearings to filibuster the bill, grilling administration witnesses at length while leisurely putting on a parade of opposing witnesses. The most dramatic moment came on March 22, when Senator Wheeler read a letter from Chief Justice Charles Evans Hughes. Wheeler and two colleagues had initially approached Hughes on March 18 to testify before the committee, but after consulting with two of his fellow justices, Hughes had declined. At the suggestion of Justice Louis Brandeis, however, Wheeler persuaded Hughes on March 20 to write a letter demonstrating that the Court was not behind in its work, that it was hearing all meritorious appeals, and that the president's proposal would impair rather than enhance the Court's efficiency. Hughes reported that he had been able to discuss the letter's contents with only two of his colleagues, the liberal Justice Brandeis and the conservative Willis Van Devanter, each of whom had approved it. He was confident, however, that its contents accorded with the views of his other colleagues as well. This statement left the impression that the justices endorsed Hughes's letter unanimously. When Wheeler had finished reading the letter, Garner telephoned Roosevelt and told him, "We're licked."

At least two weeks earlier, it had become clear that the opposition was planning to filibuster the bill on the Senate floor, and appeared to have the votes to do so successfully. Over the course of the ensuing weeks, the bill's fortunes only deteriorated further. By the end of April it was apparent the Judiciary Committee would issue an adverse report; by early May the opposition commanded an absolute majority in the Senate. A mid-May Gallup poll showed only 31 percent of the public supporting the bill. On May 18, the committee delivered its negative recommendation; on the same day, the conservative Van Devanter's announcement of his retirement seemed to deprive the bill of its very reason for being. Roosevelt could now fill the vacancy with a New Dealer.

Yet the president faced a difficulty: He had promised the next seat to Senator Joseph Robinson of Arkansas. Robinson was a loyal lieutenant in the Senate, but Roosevelt feared that, once on the Court, he would vote as a conservative. Roosevelt therefore withheld the appointment, urging Robinson to lead the fight for a compromise bill that would permit the president to appoint a smaller number of additional justices over a longer period of time. The obstacles to enactment of the compromise bill remained formidable, but the promise that its enactment would lead to a place on the Court for the popular senator breathed a measure of new life into a seemingly moribund initiative. That new life was brief, however. Robinson was found dead in his Washington apartment on July 14, and hopes for the bill's passage died with him. The Senate quickly voted to recommit the bill, instructing the committee to remove its court-packing provisions. The battle was over.


During the Court fight, the justices handed down a series of important decisions that further compromised the bill's chances. All of these decisions favored government regulation, and have been called collectively "the switch in time that saved the Nine." On March 29, the justices upheld a state minimum wage law similar to one they had invalidated only the preceding term. The cause of Justice Owen Roberts's "switch" on this issue is still debated, but it is clear that his change was not attributable to the Court plan. The vote in West Coast Hotel v. Parrish was actually taken in conference on December 19, more than six weeks before the justices knew about the president's scheme. Similarly, on May 24, the Court upheld the old-age pension and unemployment compensation provisions of the Social Security Act. Here again, the Court plan does not appear to have played a significant role. It had been known for nearly a month that the Senate committee would report the bill unfavorably and that the opposition had the votes to defeat the bill in the Senate. Moreover, two of the conservatives, who had dissented in the minimum wage case, actually voted to uphold the act's old-age provisions. There is perhaps a stronger case to be made that the April 12 decisions upholding the application of the National Labor Relations Act to three manufacturing enterprises may have been influenced by the plan. Those advancing this hypothesis take the view, disputed by others, that the Court would not have upheld the act without such external pressure. This claim similarly dismisses the possibility that the obstacles posed by the Senate filibuster and Sumners and company's opposition in the House may have given the justices reason to doubt the likelihood of the bill's ultimate enactment. It is generally agreed, however, that the Court-packing episode dealt a blow to Roosevelt's reputation for political infallibility, and opened a rift in the Democratic Party, contributing to the breakdown of the New Deal coalition and what one scholar has called the "End of Reform."



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Barry Cushman

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Supreme Court "Packing" Controversy

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Supreme Court "Packing" Controversy