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

On February 5, 1937, President Franklin D. Roosevelt sent to Congress his Judicial Reorganization Bill. It called for adding one justice to the Supreme Court for every member over 70 years of age, up to a total of six additional justices. The size of the court is not fixed by the Constitution but is set by Congress in Judiciary Acts and has varied from 6 to 10 members.

The President claimed that he wanted to add new justices to increase the Court's efficiency in dealing with a heavy work load. His real motive, however, was to pack the Court with justices favorable to his New Deal political and economic reforms. The Supreme Court had struck down, as unconstitutional, such New Deal programs as the National Industrial Recovery Act, the Railroad Retirement Act, and the Agricultural Adjustment Act.

Four justices,Willis Van Devanter, James McReynolds, George Sutherland, and Pierce Butler, were ardent opponents of the New Deal. Three justices had voted to uphold Roosevelt's program: Louis D. Brandeis, Harlan Fiske Stone,, and Benjamin Cardozo. Chief Justice Charles Evans Hughes and Associate Justice Owen Roberts were swing voters; they sometimes upheld New Deal legislation, but they had voted to strike down several laws that they believed delegated too much power to New Deal agencies. None of these justices had been appointed by Roosevelt, who was the first President since James Monroe to serve a term without making any appointments.

President Roosevelt's court-packing plan was controversial. Opponents claimed he was trying to destroy the independence of the judiciary to gain political advantage. Roosevelt, however, pushed hard for Congress to pass his bill, and it seemed that he had the votes needed to do so.

In the midst of the struggle over the plan, Justices Hughes and Roberts voted to support several New Deal measures, including the Wagner Labor Relations Act and the Social Security Act. These votes were dubbed “the switch in time that saved nine.” The momentum for the President's court-packing plan declined in the wake of the two decisions.

Realizing that his proposal was in trouble, Roosevelt accepted a compromise worked out by supporters in Congress. The President would make one additional appointment each year for every justice 75 or older. But it was too late to stem defections by congressional Democrats. On July 22, 1937, Roosevelt's court-packing plan was voted down by the Senate, 70 to 20. Although the retirement of several justices soon enabled Roosevelt to appoint a majority of the Court, defeat of his plan had shattered his congressional majority and halted the New Deal's legislative program. The coalition of conservative Democrats and Republicans forged during the Court plan fight remained the effective majority in Congress for the next two decades.

See also Appointment power; New Deal; Roosevelt, Franklin D.

Sources

• Leonard Baker, Back to Back: The Duel between FDR and the Supreme Court (New York: Macmillan, 1967).
• William Leuchtenburg, “The Origins of Franklin D. Roosevelt's ‘Court-Packing Plan,’”” Supreme Court Review (1966): 347–400.
• William Leuchtenburg, The Supreme Court Reborn: The Constitutional Revolution in the Age of Roosevelt (New York: Oxford University Press, 1996).
• Michael Nelson, “The President and the Court: Reinterpreting the Court-packing Episode of 1937”, Political Science Quarterly 103, no. 2 (1988): 267–93

The Court-packing plan (as the judicial reorganization bill was called by its opponents) was submitted to Congress by President Franklin D. Roosevelt on February 5, 1937, shortly after his landslide reelection. Although Roosevelt presented his plan as a simple organizational reform, he was clearly motivated by the consistent opposition that New Deal legislation had been encountering in the federal courts, most notably the Supreme Court's recent invalidation of such laws as the National Industrial Recovery Act, the Railroad Retirement Act, and the Agricultural Adjustment Act. The president proposed that the federal judiciary be expanded by adding one new judge for each sitting justice over the age of seventy; a total of fifty new judgeships could be created, including a maximum of six on the Supreme Court. The bill also included other measures to streamline judicial action.

Roosevelt's proposal met with fiery opposition. Many accused the president of seeking to subvert the Constitution and destroy the independence of the judiciary. Even some of those sympathetic to the president's purposes felt that the changes he sought should be made only by constitutional amendment. In addition, Roosevelt antagonized potential supporters within his own party by refusing to consult with them on the bill or consider changes in it. In March, the president launched a personal campaign on behalf of his proposal, arguing that national progress was being blocked by the prejudices of the Court majority and that his plan would restore, rather than threaten, the balance of power among the three branches of government.

Pressure for passage of the bill was weakened by the retirement of one conservative Supreme Court justice; by the death of Senator Joseph Robinson, who had been leading the fight for the plan; and by the fact that several major pieces of New Deal legislation (including the Social Security Act and the National Labor Relations Act) were upheld by the Court between March and May 1937. In August, the Judicial Procedure Reform Act was passed instead, incorporating some of the president's recommendations but leaving the number of federal justices unchanged. Over the next four years, a combination of deaths and retirements enabled Roosevelt to make seven appointments to the Court.

See also New Deal; Supreme Court.