History Podcasts

This Is How FDR Tried to Pack the Supreme Court

This Is How FDR Tried to Pack the Supreme Court

With lifetime appointments, it’s not unusual for Supreme Court justices to serve well past the average U.S. retirement age of 63. (Ruth Bader Ginsberg died at age 87 while still serving on the court and Antonin Scalia died at age 79 while still a Supreme Court justice.)

But in the late 1930s, President Franklin D. Roosevelt wanted to put restrictions on the court when it came to age. Largely seen as a political ploy to change the court for favorable rulings on New Deal legislation, the Judicial Procedures Reform Bill of 1937, commonly referred to as the “court-packing plan,” was Roosevelt’s attempt to appoint up to six additional justices to the Supreme Court for every justice older than 70 years, 6 months, who had served 10 years or more.

Dr. David B. Woolner, senior fellow and resident historian of the Roosevelt Institute and author of The Last 100 Days: FDR at War and at Peace, says it’s important to note the timing of this bill, which took place during the Great Depression. “We were in the midst of the worst economic crisis in our history,” he says. “Roosevelt’s response to this economic crisis was to engage in a series of programs designed to manage a capitalist system in such a way as to make it work for the average American. And because he wasn’t particularly ideological, he was willing to try all kinds of things.”

Over the course of the Depression, Roosevelt was pushing through legislation and, beginning in May 1935, the Supreme Court began to strike down a number of the New Deal laws. “Over the next 13 months, the court struck down more pieces of legislation than at any other time in U.S. history,” Woolner says.

Roosevelt’s first New Deal program—in particular, its centerpiece, the National Recovery Administration, along with parts of the Agricultural Adjustment Act—had been struck down by unanimous and near-unanimous votes. This frustrated Roosevelt and got him thinking about adding justices to the court, says Peter Charles Hoffer, history professor at the University of Georgia and author of The Supreme Court: An Essential History. When he won the election of 1936 in a landslide, Roosevelt decided to float the plan.

It met instant opposition.

While it was never voted on in Congress, the Supreme Court justices went public in their opposition to it. And a majority of the public never supported the bill, either, says Barbara A. Perry, director of presidential studies at the University of Virginia’s Miller Center.

“Congress and the people viewed FDR’s ill-considered proposal as an undemocratic power grab,” she says. “The chief justice (Charles Evans Hughes) testified before Congress that the Court was up to date in its work, countering Roosevelt’s stated purpose that the old justices needed help with their caseload.”

“It was never realistic that this plan would pass,” Perry says. “Roosevelt badly miscalculated reverence for the Court and its independence from an overreaching president.”

Congress, however, does have the prerogative to change the make-up of the Court, Woolner points out, and past leaders have called for similar actions, including President Theodore Roosevelt, in his famous 1910 “New Nationalism” speech. “So for Roosevelt to engage in court reform is not unprecedented,” Woolner says. “But what is unprecedented is the way he went about it.”

“He really bungled it politically.”

Hoffer says historians disagree about what happened next. Some argue that Justice Owen Roberts had shifted in his opinion of the New Deal before the election, giving later New Deal acts like social security, the National Labor Relations Act and other economic regulations his vote on the Court. That shifted the majority to favor federal welfare and regulatory enactments. Others contend that the threat of adding justices to the Court was enough to swing Roberts' vote.

In the end, Perry says, two members of the Court switched to a pro-New Deal position, known as “the switch in time that saved nine.”

“And FDR eventually packed the Court the old-fashioned way,” she says, “through attrition, naming nine members.”


Beyond Court Packing: The Supreme Court Has Always Been Political

A t her White House swearing-in, the week before Election Day, the newest Supreme Court Justice Amy Coney Barrett said that she would discharge her duties impartially, and not in accordance with her personal policy preferences. History, however, suggests that this is doubtful. It is more than coincidence that the &ldquoconservative&rdquo justices now on the court have all been appointed by Republican Presidents, and &ldquoliberal&rdquo justices by Democrats. For all the perennial talk about the judicial branch being above politics, such has never been the case&mdashand that past offers a hint about what it might be reasonable for Joe Biden and a Democratic Congress, if elected, to do about the makeup of the Supreme Court.

If President Donald Trump wins the election, the partisan nature of the Court will be one more reason for him to be happy: With Barrett the youngest justice, at just 48, the conservative direction of the Court will be assured for a generation. But if the Democrats win, national attention will likely turn again to the fact that that, while federal judges are appointed for life&mdashthat&rsquos in the Constitution&mdashthe size of the Court is up to Congress, and in fact changed seven times in the nation&rsquos early history.

During the campaign season, Biden has been reluctant to say whether he would &ldquopack&rdquo the Supreme Court. This is understandable. The phrase &ldquocourt packing&rdquo is a pejorative&mdashstacking the deck, changing the rules. But, the deck is already stacked against the political preferences of a majority of Americans: 2004 is the only year since 1988 when the Republican nominee won the most popular votes in the Presidential election. Yet, Republican presidents have appointed 6 of the 9 sitting Supreme Court Justices. And acting to get the highest court in line with national preference, as expressed by the vote, would be both politically appropriate and historically coherent.

This is not the first time in the Court&rsquos history that Congress has considered altering its ideological composition. The original Judiciary Act of 1789 pegged the number of justices at six. When the Federalists were defeated in 1800, the lame-duck Congress contracted the size of the court from six to five&mdashspitefully, to deprive Democratic-Republican President Thomas Jefferson of an appointment. The incoming Democratic-Republican Congress repealed the Federalist legislation, and increased the roster to seven to give Jefferson an additional appointment. In 1837, the size was enlarged to nine to give patronage-hungry Andrew Jackson two more appointments. When a Democrat, Andrew Johnson, became president upon Abraham Lincoln&rsquos death in 1865, a Republican Congress voted to reduce the size to seven (achieved by attrition) to guarantee Johnson would have no appointments. After Ulysses S. Grant was elected in 1868, Congress, to give Grant two new appointments, restored the court to nine, where it stands today.

Perhaps most famously, Franklin Delano Roosevelt tried to pack the Supreme Court in 1937. The justices were deprecated by their detractors like columnist Drew Pearson as &ldquonine old men,&rdquo and FDR believed they needed to get in line with public opinion. In March 1937, when five conservative justices repeatedly struck down his progressive New Deal legislation, an angry Roosevelt took the nation into his confidence in a &ldquoFireside Chat,&rdquo and said he needed to &ldquosave the Constitution from the Court, and the Court from itself.&rdquo

His ringing words: &ldquoThis plan of mine is no attack on the Court it seeks to restore the Court to its rightful and historic place in our constitutional Government, and to have it resume its high task of building anew on the Constitution &lsquoa system of living law.&rsquo&rdquo

His plan involved the introduction of a bill, known as the Judicial Procedures Reform Act, providing that the President would have the power to appoint one justice for every member of the Supreme Court over the age of 70 up to a maximum of six additional justices.

The court-packing bill was dead on arrival in the Senate. Senators of Roosevelt&rsquos own party did not like court packing, and the measure was tabled. But Roosevelt made his point. The bill exerted political pressure on the Court. One of the conservative justices, Owen Roberts, did a stunning about face, and voted with the liberals in the West Coast Hotel case, which 5-4 upheld a Washington state minimum-wage law. This was known waggishly as the &ldquoswitch in time that saved nine.&rdquo Though some historians argue that Roberts&rsquo switched vote had nothing to do with Roosevelt&rsquos proposal, no matter. Eventually, the five conservative justices died or retired. FDR got to appoint nine liberal justices during his presidency.

The Democrats will likely be out for blood if they take the Senate and keep the House, which has become increasingly likely. Their leader Senator Chuck Schumer has already announced that &ldquoeverything is on the table.&rdquo Court packing might seem politically unpalatable, and might only exacerbate the problem if Republicans countered when the political pendulum next swung right. But a Democratic majority in Congress has other options.

For example, they could implement a policy&mdashwithout changing the constitutionally mandated life tenure of the federal judiciary&mdashunder which justices would rotate off the Supreme Court to temporarily take seats on the lower federal courts. Another possibility, proposed by the late Cornell Law School dean Roger Cramton in 2005, would be to impose 18-year term limits on Supreme Court justices, getting around the need for a Constitutional amendment by declaring that, instead of retiring, the former justices would instead be on stand-by to fill in if another justice dies or recuses herself, and would have the option to serve as senior justices on the lower federal courts. Court packing? All depends on how you look at it.

More than a century ago, the humorist Finley Peter Dunne quipped sarcastically that the &ldquoSupreme Court follows the election returns.&rdquo The line is often cited with a wink of the eye about how easily the court can be swayed now, however, the court is out of step with majority opinion&mdashand if Biden wins, will be likewise off the mark on the election returns.

What happened in the 1930s could happen again: some of the other &ldquoconservatives&rdquo may switch, and vote with the liberals on the key cases. We will have to see. This is not 1937, but we are again living in troubled times&mdashand if extraordinary measures are needed to make Dunne&rsquos quip be taken seriously, those measures will be well in keeping with the court&rsquos history.

Historians’ perspectives on how the past informs the present

James D. Zirin, a former federal prosecutor, is the author of Supremely Partisan, a book about raw politics and the Supreme Court.


Great Depression & New Deal

1.some banking policies were unsound and had led to the overexpansion of credit
2.a decrease in protective tariffs had opened American business to competition from abroad
3.a wave of violent strikes had paralyzed the major industries
4.consumer goods were relatively inexpensive

1.corporations were best left to operate without government interference
2.state governments should give up control over commerce inside their states
3.the Federal Government must concern itself with the people's economic well-being
4.the United States Constitution was not relevant to 20th-century life


1.the Supreme Court's practice of judicial restraint
2.the constitutional principle of checks and balances
3.attempts of Congress to limit judicial responsibilities
4.efforts to restrict the number of terms a President could serve


Beyond Court Packing: The Supreme Court Has Always Been Political

At her White House swearing-in, the week before Election Day, the newest Supreme Court Justice Amy Coney Barrett said that she would discharge her duties impartially, and not in accordance with her personal policy preferences. History, however, suggests that this is doubtful. It is more than coincidence that the &ldquoconservative&rdquo justices now on the court have all been appointed by Republican Presidents, and &ldquoliberal&rdquo justices by Democrats. For all the perennial talk about the judicial branch being above politics, such has never been the case&mdashand that past offers a hint about what it might be reasonable for Joe Biden and a Democratic Congress, if elected, to do about the makeup of the Supreme Court.

If President Donald Trump wins the election, the partisan nature of the Court will be one more reason for him to be happy: With Barrett the youngest justice, at just 48, the conservative direction of the Court will be assured for a generation. But if the Democrats win, national attention will likely turn again to the fact that that, while federal judges are appointed for life&mdashthat&rsquos in the Constitution&mdashthe size of the Court is up to Congress, and in fact changed seven times in the nation&rsquos early history.

During the campaign season, Biden has been reluctant to say whether he would &ldquopack&rdquo the Supreme Court. This is understandable. The phrase &ldquocourt packing&rdquo is a pejorative&mdashstacking the deck, changing the rules. But, the deck is already stacked against the political preferences of a majority of Americans: 2004 is the only year since 1988 when the Republican nominee won the most popular votes in the Presidential election. Yet, Republican presidents have appointed 6 of the 9 sitting Supreme Court Justices. And acting to get the highest court in line with national preference, as expressed by the vote, would be both politically appropriate and historically coherent.

This is not the first time in the Court&rsquos history that Congress has considered altering its ideological composition. The original Judiciary Act of 1789 pegged the number of justices at six. When the Federalists were defeated in 1800, the lame-duck Congress contracted the size of the court from six to five&mdashspitefully, to deprive Democratic-Republican President Thomas Jefferson of an appointment. The incoming Democratic-Republican Congress repealed the Federalist legislation, and increased the roster to seven to give Jefferson an additional appointment. In 1837, the size was enlarged to nine to give patronage-hungry Andrew Jackson two more appointments. When a Democrat, Andrew Johnson, became president upon Abraham Lincoln&rsquos death in 1865, a Republican Congress voted to reduce the size to seven (achieved by attrition) to guarantee Johnson would have no appointments. After Ulysses S. Grant was elected in 1868, Congress, to give Grant two new appointments, restored the court to nine, where it stands today.

Perhaps most famously, Franklin Delano Roosevelt tried to pack the Supreme Court in 1937. The justices were deprecated by their detractors like columnist Drew Pearson as &ldquonine old men,&rdquo and FDR believed they needed to get in line with public opinion. In March 1937, when five conservative justices repeatedly struck down his progressive New Deal legislation, an angry Roosevelt took the nation into his confidence in a &ldquoFireside Chat,&rdquo and said he needed to &ldquosave the Constitution from the Court, and the Court from itself.&rdquo

His ringing words: &ldquoThis plan of mine is no attack on the Court it seeks to restore the Court to its rightful and historic place in our constitutional Government, and to have it resume its high task of building anew on the Constitution &lsquoa system of living law.&rsquo&rdquo

His plan involved the introduction of a bill, known as the Judicial Procedures Reform Act, providing that the President would have the power to appoint one justice for every member of the Supreme Court over the age of 70 up to a maximum of six additional justices.

The court-packing bill was dead on arrival in the Senate. Senators of Roosevelt&rsquos own party did not like court packing, and the measure was tabled. But Roosevelt made his point. The bill exerted political pressure on the Court. One of the conservative justices, Owen Roberts, did a stunning about face, and voted with the liberals in the West Coast Hotel case, which 5-4 upheld a Washington state minimum-wage law. This was known waggishly as the &ldquoswitch in time that saved nine.&rdquo Though some historians argue that Roberts&rsquo switched vote had nothing to do with Roosevelt&rsquos proposal, no matter. Eventually, the five conservative justices died or retired. FDR got to appoint nine liberal justices during his presidency.

The Democrats will likely be out for blood if they take the Senate and keep the House, which has become increasingly likely. Their leader Senator Chuck Schumer has already announced that &ldquoeverything is on the table.&rdquo Court packing might seem politically unpalatable, and might only exacerbate the problem if Republicans countered when the political pendulum next swung right. But a Democratic majority in Congress has other options.

For example, they could implement a policy&mdashwithout changing the constitutionally mandated life tenure of the federal judiciary&mdashunder which justices would rotate off the Supreme Court to temporarily take seats on the lower federal courts. Another possibility, proposed by the late Cornell Law School dean Roger Cramton in 2005, would be to impose 18-year term limits on Supreme Court justices, getting around the need for a Constitutional amendment by declaring that, instead of retiring, the former justices would instead be on stand-by to fill in if another justice dies or recuses herself, and would have the option to serve as senior justices on the lower federal courts. Court packing? All depends on how you look at it.

More than a century ago, the humorist Finley Peter Dunne quipped sarcastically that the &ldquoSupreme Court follows the election returns.&rdquo The line is often cited with a wink of the eye about how easily the court can be swayed now, however, the court is out of step with majority opinion&mdashand if Biden wins, will be likewise off the mark on the election returns.

What happened in the 1930s could happen again: some of the other &ldquoconservatives&rdquo may switch, and vote with the liberals on the key cases. We will have to see. This is not 1937, but we are again living in troubled times&mdashand if extraordinary measures are needed to make Dunne&rsquos quip be taken seriously, those measures will be well in keeping with the court&rsquos history.

Historians’ perspectives on how the past informs the present

James D. Zirin, a former federal prosecutor, is the author of Supremely Partisan, a book about raw politics and the Supreme Court.


Is It Possible To Expand The Supreme Court?

NPR's Mary Louise Kelly talks with Judge Glock, a senior policy adviser for the Cicero Institute, about the history of President Franklin D. Roosevelt's attempt to pack the Supreme Court.

After news broke of Supreme Court Justice Ruth Bader Ginsburg's death, the political maneuvering started pretty much immediately. One idea some Democrats are talking about - packing the court. Here's what that means. If Republicans fill Ginsburg's seat before the election and if Democratic candidate Joe Biden wins the election and Democrats turn over the Senate, then Congress could theoretically change the law. Add justices to the Supreme Court. Pack it with Biden appointees, so liberals are in the majority. That current number, nine justices, is not actually mandated in the Constitution. Well, here to talk with us about this is Judge Glock, who dug into the history for Politico magazine.

JUDGE GLOCK: Thank you so much for having me.

KELLY: So let's start with the history because there is precedent here. FDR - President Roosevelt - had a plan to pack the court. Why did he want to do it, and what happened?

GLOCK: Yeah, so it was a similar issue in that he was concerned about the conservative bent of the court and he wanted to, as many at the time saw, add more justices to push it into a more liberal direction. But the other concern he has was that there hadn't been any retirements for a long time in the court. And he presented this original plan actually not so much as a way to add justices to the court as to kind of push the older justices, specifically those over 70, to leave.

KELLY: We've actually got a little bit of tape. We can hear FDR. This is him pitching his plan in one of his fireside chats, 1937.

(SOUNDBITE OF ARCHIVED RECORDING)

PRESIDENT FRANKLIN DELANO ROOSEVELT: This plan will save our national constitution from hardening of the judicial arteries.

GLOCK: When the fight went on and the purely political nature of it was made clear, the arguments about encouraging them to retire or merely getting new justice on the bench for the older justice kind of carried less weight.

(SOUNDBITE OF ARCHIVED RECORDING)

ROOSEVELT: I will appoint justices who will act as justices and not as legislators.

GLOCK: And that's when a lot of his own party began to turn against him.

KELLY: Well, I mean, the concern that some of FDR's his opponents raised are being raised today - that this would further politicize a court, that this would turn the Supreme Court into a partisan body.

GLOCK: Well, exactly. One of the criticisms was that if they did it, what was going to stop them four years later from - the Republicans from doing the exact same thing? Exactly because there is no limit on the number of justice on the bench in the Constitution, it's potentially bottomless exercise.

KELLY: Well, I will note for those listening who might still be in suspense, FDR did not succeed in adding additional justices. I also want to note that Joe Biden has has gone on record and said he would not get into court packing - a direct quote from Biden there from a debate last year.

GLOCK: But how hard would it be? If they controlled both houses of Congress, it could pass just like an absolutely normal law, no different from a, really, farm appropriations bill. The main barrier to that would be public opposition. And FDR was surprised at the amount of just raw public feeling that went into the Supreme Court in 1937 when he proposed it. And as you look today, the Supreme Court remains one of our more respected institutions. It polls much better, usually, than the presidency or the Congress.

KELLY: One more voice to draw into our conversation, which is Ruth Bader Ginsburg herself. She actually weighed in on the idea of court packing in an interview with NPR's Nina Totenberg last year.

(SOUNDBITE OF ARCHIVED NPR BROADCAST)

RUTH BADER GINSBURG: Well, if anything would make the court appear partisan, it would be that - one side saying, when we're in power, we're going to enlarge the number of judges, so we will have more people who will vote the way you want them to.

KELLY: So how - I mean, how real a possibility do you think this is? Or is this a lot of talk at this point?

GLOCK: Some people like Sen. Schumer and Sen. Markey have said they support or at least.

KELLY: Two Democratic senators.

GLOCK: . Would support potentially having anything on the table. I think in reality, it is a lot of talk to try to influence both parties kind of back down at this point, as long as a lot of the own party probably doesn't want to trot down the same path that Roosevelt did in '37, which really fractured the Democratic coalition, almost permanently, for the next 30 years. People with longer memories remember how devastating that fight was for the Democratic Party.

KELLY: That is Judge Glock, senior policy adviser for The Cicero Institute, which is a nonpartisan think tank.

Copyright © 2020 NPR. All rights reserved. Visit our website terms of use and permissions pages at www.npr.org for further information.

NPR transcripts are created on a rush deadline by Verb8tm, Inc., an NPR contractor, and produced using a proprietary transcription process developed with NPR. This text may not be in its final form and may be updated or revised in the future. Accuracy and availability may vary. The authoritative record of NPR&rsquos programming is the audio record.


The Post-Election Plan to Pack the Supreme Court

In 1983, then Sen. Joe Biden called court-packing proposed by President Franklin Roosevelt in the 1930s a “bonehead idea.” Why the change of heart?

For the first time in nearly a century, court-packing has been put on the table as a “serious” reform to the Supreme Court.

In 1983, then Sen. Joe Biden called court-packing proposed by President Franklin Roosevelt in the 1930s a “bonehead idea.”

It appears that the era of serious statesmanship is over and the time of the “bonehead idea” has arrived.

Biden was wishy-washy on the campaign trail about whether he now supported court-packing—an increasingly popular idea in left-leaning intellectual circles—leaving the possibility open but never fully committing to the idea. It seems post-election that his presidential administration is at least taking the initial steps leading to court-packing, creating a commission to examine the issue.

A group of powerful House Democrats recently unveiled legislation to increase the number of Supreme Court justices from nine to thirteen. It would be the first time the Supreme Court expanded since just after the end of the Civil War.

“Some people will say we're packing the Court,” said Rep. Jerry Nadler (D-N.Y) who is the House Judiciary Committee chairman, at a press conference announcing the bill. “We’re not packing. We’re unpacking. Sen. [Mitch] McConnell and the Republicans packed it over the last couple of years.”

By “packed it” he meant that Republicans used their power and majorities to fill vacancies on the Supreme Court and other federal courts.

House Speaker Nancy Pelosi (D-Calif.) said that she would not bring the legislation, but on the other hand, she voiced support for Biden’s vote packing commission.

A group of Republican senators then held a press conference on Thursday to voice opposition to the court-packing idea.

“Packing the court and tearing down the institutions that protect our rights is fundamentally wrong,” Sen. Ted Cruz (R-Texas) said.

Cruz also said that packing the Supreme Court would “destroy judicial independence.”

So, what’s to be made of this sudden push to expand the Court?

Of course, as mentioned above, court-packing was famously, or infamously, attempted by Roosevelt in the 1930s.

Large parts of Franklin D. Roosevelt’s economic program had been effectively blocked by the Supreme Court. This clearly didn’t sit well with Roosevelt, who was used to political success after his election in 1932.

Shortly after his re-election in 1936 that also saw the Democrat Party build significantly on their national majorities, Roosevelt proposed legislation that would add justices to the Supreme Court “where there are incumbent judges of retirement age who do not choose to retire or to resign.” He set the retirement age to seventy. Naturally, it was four Supreme Court justices over seventy who had most frequently stymied his legislation and declared it unconstitutional.

Given the partisan balance of Congress, which at that point was almost entirely Democrat, it may seem natural that Roosevelt would have had his way with this plan, but that wasn’t the case at all.

He met swift and often hostile opposition from many congressional Democrats.

Sen. Burton Wheeler of Montana, a Democrat ally of Roosevelt, blasted his court-packing plan in a 1937 speech. He explained how it would ultimately create a “political court,” that would destroy the independence of the judicial branch and undermine safeguards protecting American liberty. He called court-packing “a weapon whose use is only dictated by the conscience of the wielder.”

The Senate Judiciary Committee had even more scathing words for Roosevelt’s court-packing plan in a report on the proposed legislation, worth quoting at length:

We are told that a reactionary oligarchy defies the will of the majority, that this is a bill to ‘unpack’ the Court and give effect to the desires of the majority that is to say, a bill to increase the number of Justices for the express purpose of neutralizing the views of the present members. In justification we are told, but without authority, by those who would rationalize this program, that Congress was given the power to determine the size of the Court so that the legislative branch would be able to impose its will upon the judiciary. This amounts to nothing more than the declaration that when the Court stands in the way of a legislative enactment, the Congress may reverse the ruling by enlarging the Court. When such a principle is adopted, our constitutional system is overthrown!

The committee concluded of the court-packing idea that “it is a measure which should be so emphatically rejected that its parallel will never again be presented to the free representatives of the free people of America.”

Unfortunately, it is being put before Americans once again. The difference is that this time it appears to have the backing of members of Congress. So far, the only significant rebukes of this bad idea have come from Republicans. Though Justice Stephen Breyer, who was appointed to the Supreme Court by Democrat President Bill Clinton, called it a terrible idea that would undermine the judiciary.

What’s remarkable about this attempt to pack the Supreme Court is that Democrats only have slim majorities in Congress. In the 1930s, the argument for court-packing stemmed from the Supreme Court striking down legislation that presumably had overwhelming democratic support from the American people.

Today’s plan seems to be an even more desperate attempt to gain partisan control of the judicial branch in perhaps only a few fleeting years of power. The narrow 2020 election was a far cry from the landslide of 1936.

Not only do Democrats have a tenuous grip on national political power, but court-packing as an idea is enormously unpopular with the American people. According to an April 16-19 Morning Consult poll, only “26% of voters say Congress should pass a law allowing more than nine justices to serve on the Supreme Court.” Almost all of that support comes from Democrats and virtually none from Republicans and independents.

The scheme is deeply unpopular and will likely fail. Perhaps it is just being used as a means to rally partisan Democrats, or more perniciously, to work as a threat to members of the Supreme Court to bend to their will, or else.

Regardless of the ultimate motivation, it’s a telling sign of the departure from constitutional governance and even basic prudence that infects America’s elite political class. Biden was right in 1983, court-packing is a bonehead idea, and it appears that our nation’s capital is filled with more boneheads than ever.

Jarrett Stepman is a contributor to The Daily Signal and co-host of The Right Side of History podcast.


Some Democrats Want to Make the Supreme Court Bigger. Here's the History of Court Packing

O ne of the issues that the 2020 Democratic presidential candidates are generally split on is whether it could potentially be a good idea to add Justices to the U.S. Supreme Court or to nix justices’ life-long terms.

The subject came up directly at the Democratic primary debate on Tuesday night in the Columbus, Ohio, suburb of Westerville. Moderator Erin Burnett from CNN asked former Vice President Joe Biden about whether he would try to add Justices to the Supreme Court “to protect women’s reproductive rights” if Roe v. Wade is overturned.

Biden reiterated his opposition to what’s often called court packing &mdash &ldquoWe begin to lose any credibility the court has at all,&rdquo Biden said &mdash while former Secretary of Housing and Urban Development (HUD) Julián Castro said he’s open to exploring the idea of term limits, and South Bend, Ind., mayor Pete Buttigieg proposed increasing the number of Justices from nine to 15, suggesting that there would be five seats that could only be filled with the unanimous agreement of the other Justices.

As TIME has previously reported, court packing has become “the next big Democratic idea,” as the Supreme Court now has more Justices appointed by Republican Presidents than Democratic Presidents &mdash five versus four, respectively &mdash and big cases on civil rights, immigration and guns are set to be decided in the middle of an already heated presidential election year.

The fact that the Constitution doesn’t require there to be nine Justices leaves open the possibility for change, but the Democratic Party does have a complicated history of court-packing attempts. Most famously, President Franklin Delano Roosevelt already &mdash unsuccessfully &mdash tried Buttigieg’s idea of expanding the bench to 15 Justices.

Roosevelt had just won a second term in 1936, and felt pretty invincible, viewing the landslide results as a sign that Americans favored his New Deal programs to address the Great Depression. But, while he may have felt like Americans were sold on the New Deal, the conservative-leaning Supreme Court was looking like a harder sell. Toward the end of his first term, the Justices struck down some New Deal laws that involved increasing government regulation of the economy and a New York state law ensuring minimum wage to women and children in the workplace. This situation raised concerns about whether New Deal social legislation was in jeopardy.

Just as he took radical action during the Great Depression to expand the federal government’s power through his New Deal legislation, FDR felt as if he could take radical measures to ensure those laws stayed on the books, even if it meant changing who was on the bench.

In February of 1937, he backed the Judicial Procedures Reform Bill of 1937, which &mdash on the idea that the Judiciary branch’s caseload had also become overwhelming and it was falling behind &mdash proposed allowing the President to add a Justice to the Supreme Court for every Justice over the age of 70, capping these kinds of appointments at six. And, FDR pointed out, he had precedent behind him for enlarging the bench: Since the Judiciary Act of 1789 had set up the first Supreme Court with six Justices, that number grew to seven in 1807, nine in 1837, and 10 in 1863. An 1866 law allowed the bench to be reduced to seven Justices, and there were eight in the late 1860s until a 1869 law changed the number back to nine, where it remained.

“A lowered mental or physical vigor leads men to avoid an examination of complicated and changed conditions,” read FDR’s statement accompanying the draft bill text sent to Congress on Feb. 5, 1937. “Little by little, new facts become blurred through old glasses fitted, as it were, for the needs of another generation older men, assuming that the scene is the same as it was in the past, cease to explore or inquire into the present or the future.”

Still, the announcement came as a huge shock to the other branches of government and to the press. As TIME described the reaction back then in the Feb. 15, 1937, issue:

As always in one of his major acts&mdashand this was his biggest yet&mdashFranklin Roosevelt had taken this country completely by surprise. Flabbergasted Congressmen stumbled hastily into the legislative chambers to hear the message read as rumors of its contents flew. News-tickers flashed it to the floors of stock exchanges and stockmarket prices took a swift tumble. It spread in banner headlines across every newspaper. Presently it appeared that the U. S. was not only surprised but also rather shocked. Only the most rabid New Deal newspapers openly applauded. The alarm of the independent press that ordinarily supports the Administration was typified by the New York Times, which sternly said: “Cleverness and adroitness in dealing with the Supreme Court are not qualities which sober-minded citizens will approve.” Said a Scripps-Howard editorial writer: “Though not as crude as President Grant’s coup adding two members to the high bench to win majority approval of his legal tender law, Mr. Roosevelt’s proposal, in its political sense, is designed to achieve the same end. And because that purpose sticks out like a sore thumb, the President must accept much of the responsibility for returning the controversy to the realm of emotion.”

… As obviously as the President’s message was an argument for a change in the judiciary on the simple grounds of good government, his major proposal had an ulterior motive. It was patently contrived to let him override the Supreme Court as now constituted by adding or replacing Justices to support the legal contentions of the New Deal.

Chief Justice Charles Evans Hughes wrote a letter slamming the proposal. In June 1937, the Senate Judiciary Committee sent the bill to the full Senate and recommended members vote it down, describing it as “an invasion of judicial power such as has never before been attempted in this country,” and arguing that “it is essential to the continuance of our constitutional democracy that the judiciary be completely independent of both the executive and legislative branches of the government.” That July, the Senate voted 70-20 to send the bill back to committee so it could be stripped of the court-packing provisions.

FDR went another route, attempting to “purge” the members of his own party who didn’t support his court-packing plan by backing the primary opponents of nine who hadn’t supported some of his New Deal policies. That effort also failed &mdash all nine won re-election &mdash and instead has become a teachable moment in terms of the limits of presidential influence in congressional races, especially when incumbents are running for re-election.

But the New Deal’s legacy arguably had already been set in the right direction while the court-packing bill was stuck in committee.

That spring, the Supreme Court handed down decisions that upheld a Washington minimum-wage law, as well as two landmark New Deal laws, the Social Security Act and the National Labor Relations Act (aka the Wagner Act). The conservative Justice Owen Roberts was initially expected to vote against them, but didn’t. His flip has been famously dubbed “the switch in time that saved nine.” In the years since, some scholars have speculated, as historian William Leuchtenburg has written, that “the pressure exerted by the court-packing bill may very likely have been influential.” Others scholars argue that’s a myth and that Roberts made up his mind much earlier, and that his vote can be viewed as consistent with some of his past decisions.

In any case, the stigma attached to the idea of expanding the bench remained.

Not even all of the Justices appointed by Democrats agree with the 2020 Democratic presidential candidates who want to expand the court. Ruth Bader Ginsburg (nominated by President Clinton in 1993) said in a July interview that FDR’s idea to add Justices was a “bad idea” in 1937 and still a bad idea eight decades later, because additional judges would make the court look “partisan.”


'Extraordinary Conditions'

It doesn't take Sherlock Holmes to discover the cause of Franklin Roosevelt's beef with the Supreme Court. The simple fact is that FDR was sore about losing a bunch of big cases. Perhaps his most stinging defeat came on May 27, 1935—"Black Monday," as despondent New Dealers came to call it—when Roosevelt lost three major cases in the course of a single morning, each one decided against him by a vote of 9–0. The most significant of the three was Schechter Poultry Corp. v. United States, which invalidated the National Industrial Recovery Act (NIRA) of 1933, the legislative centerpiece of FDR's New Deal agenda.

The Schechter case asked whether the NIRA represented an illegal delegation of lawmaking authority by Congress to the executive. Given the massive number of executive orders issued by FDR under the sweeping law, it seemed as if the president was becoming a lawmaking power unto himself.

Also at issue in Schechter was whether the NIRA, which regulated economic activity down to the most minute local level, amounted to an illegitimate exercise of Congress' power to regulate interstate commerce. The Schechter brothers, who operated a kosher slaughterhouse in Brooklyn, New York, sparked the case by running afoul of New Deal regulators by committing such supposed infractions as "destructive price cutting" and allowing customers to make "selections of individual chickens taken from particular coops and half-coops." Not exactly "commerce&hellipamong the several states."

The Supreme Court ruled against the New Dealers on both counts. "Extraordinary conditions do not create or enlarge constitutional power," declared the unanimous opinion of Chief Justice Charles Evans Hughes. That phrase was widely understood as a direct rebuke of Roosevelt himself. The NIRA must be struck down in its entirety, the chief justice wrote, or else "there would be virtually no limit to the federal power, and, for all practical purposes, we should have a completely centralized government."

FDR was furious. "The country was in the horse-and-buggy age when that clause was written," he complained to the press, referring to the provision giving federal lawmakers the power to regulate commerce that crosses state lines. As far as he was concerned, the country needed a Supreme Court that would "view the interstate commerce clause in the light of present-day civilization."

A reporter then asked the president about his next move against the Court. "We haven't got to that yet," Roosevelt replied. Two years later, having been securely reelected to a second term, he would seek his revenge via the court-packing plan.


Social Security

The constitutionality of the Social Security Act was settled in a set of Supreme Court decisions issued in May 1937. The text of those decisions, with dissents, is presented here. (We also include a brief historical essay to help general readers better understand the context of the decisions.)

By Larry DeWitt
SSA Historian
1999

Preparing a report and transforming that report into a law, while heroic in scope in many ways, is not always the end of the story. Even though the Social Security Act was enacted into law on August 14, 1935, the country still had to hear from the Supreme Court. This was a new untested area of federal authority and it was inevitable that it would be challenged in the courts, and until the Supreme Court ruled, no one could be sure that the nascent Social Security Act would survive its infancy.

The constitutional basis of the Social Security Act was uncertain. The basic problem is that under the "reserve clause" of the Constitution (the 10th Amendment) powers not specifically granted to the federal government are reserved for the States or the people. When the federal government seeks to expand its influence in new areas it must find some basis in the Constitution to justify its action. Obviously, the Constitution did not specifically mention the operation of a social insurance system as a power granted to the federal government! The Committee on Economic Security (CES) struggled with this and was unsure whether to claim the commerce clause or the broad power to levy taxes and expend funds to "provide for the general welfare," as the basis for the programs in the Act. Ultimately, the CES opted for the taxing power as the basis for the new program, and the Congress agreed, but how the courts would see this choice was very much an open question. (See the sidebar on "A Tea Party That Changed History.")


A Dispute Among the Founders-


James Madison

The constitutional issue about the taxing power had deep roots running all the way back to the founders and to a dispute between Alexander Hamilton and James Madison. Although both Hamilton and Madison were Federalists who believed in a strong federal government, they disagreed over the interpretation of the Constitution's permission for the government to levy taxes and spend money to "provide for the general welfare." Hamilton thought this meant that government could levy new taxes and undertake new spending if doing so improved the general welfare in a broad sense. Madison thought the federal government could only expend money for purposes specifically enumerated in the Constitution.

The Madisonian view, also shared by Thomas Jefferson, came in time to be known as the strict construction doctrine while the Hamiltonian view is called the doctrine of implied powers .

The balance between these two philosophies went one way and then the other over the years, with Hamilton's view tending to prevail over the long run, but it was always possible that in uncharted waters the courts might retreat to a Madisonian conservatism, and the Supreme Court of the early New Deal era was highly conservative in outlook.


The AAA & the Social Security Act-

Already in 1934 lower courts had begun overturning major parts of the New Deal program. Potentially the most serious threat came from rulings invalidating the Agricultural Adjustment Act (AAA), which used the same broad power to levy taxes for the general welfare as the basis for its program of agricultural price supports and controls. Lower courts ruled this unconstitutional and the Supreme Court followed in January 1936, ruling that ". . .a statutory plan to regulate and control agricultural production, [is] a matter beyond the powers delegated to the federal government. . ." There was a silver lining in the cloud, however, because the same opinion ultimately sided with Hamilton on the larger question of a strict or a flexible interpretation of the general welfare clause by holding that: " . . .the power of Congress to authorize expenditure of public moneys for public purposes is not limited by the direct grants of legislative power found in the Constitution." 1

The Supreme Court's ruling on the AAA was a major rebuff for the New Deal and it was important for Social Security as well since it seemed to portend what lay ahead for the Social Security Act. The AAA was an attempt to rescue farmers from the collapse of the farm economy that happened with the coming of the Depression. It sought to control agricultural production in order to stabilize prices and restore farming to profitability. The actual mechanism by which this control was to be achieved was to levy a tax on the processing of foodstuffs and to use the proceeds from this tax to fund agricultural subsidies--in effect, using the subsidies as "incentives" to control production. Fearing how the courts would see this new function of government, the framers of the AAA deliberately placed the tax provisions and the subsidy provisions in separate titles of the act, so they could argue that they were not necessarily connected to each other that is, so they could argue that the purpose of the tax was not to control production but was merely to raise revenue. This was the same strategy adopted by the framers of the Social Security Act, as can be seen in the separate Titles II and VIII of the original Social Security Act.

The old-age insurance system introduced in the Social Security Act was designed, at a public policy level, to be a contributory social insurance program in which contributions were made by workers to what was called the "old age reserve account," with the clear idea that this account would then be the source of monies to fund the workers' retirement. Actuarial studies were done to determine what the contribution rate would need to be in order to have sufficient reserves in the account to pay anticipated benefits. In the popular understanding of the program, the contributions established an "earned right" to the eventual benefits. President Roosevelt strenuously objected to any attempt to introduce general revenue funding into the program. His famous quote on the importance of the payroll taxes was: "We put those payroll contributions there so as to give the contributors a legal, moral, and political right to collect their pensions and unemployment benefits. With those taxes in there, no damn politician can ever scrap my social security program." 2

Conceptually, the old-age insurance program was a social insurance program with an obvious connection between the taxes collected in Title VIII of the Act and the benefits paid in Title II of the Act. The taxing and spending provisions of the Act were placed in separate titles in the vain hope of convincing the courts that what was obvious was not the case--that is, so that the argument could be made that the taxing and spending provisions had nothing to do with each other. Whether such a strategy would work was highly questionable--especially following the ruling on the AAA. But as it would turn out, the Court itself would change in ways that rendered the strategy moot and the Social Security Act safe from legal challenge.

A President Tries to Pack a Court-

In early 1937 President Roosevelt made what turned out to be the biggest political blunder of his career, and yet it was a blunder that would have fortuitous, even pivotal, importance for the fate of Social Security.

Federal judges are appointed for life. The Supreme Court of the 1930s was the most elderly in the history of the Republic, with an average age of over 71. President Roosevelt would derisively refer to them as "those nine old men." Actually, he only had four of them in mind. The Court was split down the middle in political terms. On the liberal side were three justices sympathetic to the New Deal programs (Brandeis, Stone and Cardozo) on the conservative side were four justices who voted against everything the Congress and the Administration tried to do (McReynolds, Butler, Van Devanter and Sutherland). In the middle were Chief Justice Charles Evans Hughes and Justice Owen Roberts, who were often "swing votes" on many issues. In the spring of 1935 Justice Roberts joined with the conservatives to invalidate the Railroad Retirement Act. In May, the Court threw out a centerpiece of the New Deal, the National Industrial Recovery Act. In January 1936 a passionately split Court ruled the Agricultural Adjustment Act unconstitutional. In another case from 1936 the Court ruled New York state's minimum wage law unconstitutional. The upshot was that major social and political reforms, including social insurance programs, appeared headed for defeat. This despite the obvious will of the electorate who returned Roosevelt to office in 1936 with the largest landslide in history.

The 1937 Supreme Court. National Archives .

President Roosevelt's response to all of this was stunning and unexpected. On February 5, 1937 he sent a special message to Congress proposing legislation granting the President new powers to add additional judges to all federal courts whenever there were sitting judges age 70 or older who refused to retire. Couching his argument as a reform to help relieve the workload burden on the courts, President Roosevelt's unusually blunt language made it clear what he really had in mind: "A part of the problem of obtaining a sufficient number of judges to dispose of cases is the capacity of the judges themselves. This brings forward the question of aged or infirm judges--a subject of delicacy and yet one which requires frank discussion. In exceptional cases, of course, judges, like other men, retain to an advanced age full mental and physical vigor. Those not so fortunate are often unable to perceive their own infirmities. . . A lower mental or physical vigor leads men to avoid an examination of complicated and changed conditions. Little by little, new facts become blurred through old glasses fitted, as it were, for the needs of another generation older men, assuming that the scene is the same as it was in the past, cease to explore or inquire into the present or the future." 3

The practical effect of this proposal was that the President would get to appoint six new Justices to the Supreme Court (and 44 judges to lower federal courts) thus instantly tipping the political balance on the Court dramatically in his favor. The debate on this proposal was heated, widespread and over in six months. The President would be decisively rebuffed, his reputation in history tarnished for all time. But the Court, it seemed, got the message and suddenly shifted its course. Beginning with a set of decisions in March, April and May 1937 (including the Social Security Act cases) the Court would sustain a series of New Deal legislation, producing a "constitutional revolution in the age of Roosevelt." 4

One of the many cartoons of the period that were critical of FDR's court-packing plan. FDR Library .

A Switch in Time Despite the intense controversy the court-packing plan provoked, and the divided loyalties it produced even among the President's supporters, the legislation appeared headed for passage, when the Court itself made a sudden shift that took the wind out of the President's sails. In March 1937, in a pivotal case, Justice Roberts unexpectedly changed his allegiance from the conservatives to the liberals, shifting the balance on the Court from 5-4 against to 5-4 in favor of most New Deal legislation. In the March case Justice Roberts voted to uphold a minimum wage law in Washington state just like the one he had earlier found to be unconstitutional in New York state. Two weeks later he voted to uphold the National Labor Relations Act, and in May he voted to uphold the Social Security Act. This sudden change in the Court's center of gravity meant that the pressure on the New Deal's supporters lessened and they felt free to oppose the President's plan. This sudden switch by Justice Roberts was forever after referred to as "the switch in time that saved nine." 5

Three Social Security cases made their way to the Supreme Court during its October 1936 term. One challenged the old-age insurance program (Helvering vs. Davis) and two challenged the unemployment compensation program of the Social Security Act. The Court would issue rulings on all three on the same day.

George P. Davis was a minor stockholder in the Edison Electric Illuminating Company. Edison, like every industrial employer in the nation, was readying itself to start paying the employers' share of the payroll tax in January 1937. Mr. Davis objected to this arguing that by making this expenditure Edison was robbing him of part of his equity, so he sued Edison to prevent their compliance with the Social Security Act. The government intervened on Edison's behalf and the Commissioner of the IRS (Mr. Helvering) took on the lawsuit.

The attorneys for Davis argued that the payroll tax was a new type of tax not listed in the Constitution's tally of taxes, and so it was unconstitutional. At one point they even introduced into their argument the definitions of "taxes" from dictionaries in 1788 (the year before the Constitution was ratified) to prove how earnest they were in the belief that powers not explicitly granted in 1789 could not be created in 1935. Davis was also of the view that providing for the general welfare of the aged was a power reserved to the states. The government argued that this was too inflexible an interpretation of the powers granted to Congress, and (loosely) that if the country could not expand the interpretation of the Constitution as it stood in 1789 progress would be impossible and it would still be 1789.

In the Steward Machine Company case the unemployment compensation provisions of the Act were disputed. The Company dutifully paid its first unemployment tax installment ($46.14) and then sued the government to recover the payment, claiming the Social Security Act was unconstitutional. Steward made the same as points as Davis about the meaning of the word "tax," and argued in addition that the unemployment compensation program could not qualify as "providing for the general welfare."

Carmichael vs. Southern Coal & Coke Co. and Gulf States Paper:

This was also a case disputing the validity of the unemployment compensation program. In this variation the companies were challenging the state portion of the federal/state arrangement. Unwilling to pay their share of state unemployment compensation taxes the two companies sued the state of Alabama declaring that it was the Social Security Act, which they deemed unconstitutional, that gave Alabama its authority to tax them in this way and since they believed the Act to be invalid, they did not have to pay the tax. Alabama differed. It was again the same issues as in the two prior cases.

Mr. Justice Cardozo for the Court-

On May 24, 1937 the Supreme Court handed down its decision in the three cases. Justice Cardozo wrote the majority opinion in the first two cases and he announced them on what was, coincidentally, his 67th birthday. (See sidebar on Justice Cardozo.)

Mirroring the situation in Congress when the legislation was considered, the old-age insurance program met relatively little disagreement. The Court ruled 7 to 2 in support of the old-age insurance program. And even though two Justices disagreed with the decision, no separate dissents were authored. The unemployment compensation provisions, by contrast, were hotly disputed within the Court, just as they had been the focus of most of the debate in Congress. The Court ruled 5 to 4 in support of the unemployment compensation provisions, and three of the Justices felt compelled to author separate dissents in the Steward Machine case and one Justice did so in the Southern Coal & Coke case.

Justice Cardozo wrote the opinions in Helvering vs. Davis and Steward Machine . After giving the 1788 dictionary the consideration he thought it deserved, he made clear the Court's view on the scope of the government's spending authority: " There have been statesman in our history who have stood for other views. . .We will not resurrect the contest. It is now settled by decision. The conception of the spending power advocated by Hamilton . . .has prevailed over that of Madison. . . " Arguing that the unemployment compensation program provided for the general welfare, Cardozo observed: ". . . there is need to remind ourselves of facts as to the problem of unemployment that are now matters of common knowledge. . .the roll of the unemployed, itself formidable enough, was only a partial roll of the destitute or needy. The fact developed quickly that the states were unable to give the requisite relief. The problem had become national in area and dimensions. There was need of help from the nation if the people were not to starve. It is too late today for the argument to be heard with tolerance that in a crisis so extreme the use of the moneys of the nation to relieve the unemployed and their dependents is a use for any purpose [other] than the promotion of the general welfare ."

And finally, he extended the reasoning to the old-age insurance program: " The purge of nation-wide calamity that began in 1929 has taught us many lessons. . . Spreading from state to state, unemployment is an ill not particular but general, which may be checked, if Congress so determines, by the resources of the nation. . . But the ill is all one or at least not greatly different whether men are thrown out of work because there is no longer work to do or because the disabilities of age make them incapable of doing it. Rescue becomes necessary irrespective of the cause. The hope behind this statute is to save men and women from the rigors of the poor house as well as from the haunting fear that such a lot awaits them when journey's end is near ."

With these cases decided, Justice Stone could then dispose of the third case in short order. " Together the two statutes now before us embody a cooperative legislative effort by state and national governments, for carrying out a public purpose common to both, which neither could fully achieve without the cooperation of the other. The Constitution does not prohibit such cooperation ." 6

The Social Security Board Breathes a Sigh of Relief-

Putting the Social Security Act into operation was a massive challenge, in some respects it was unprecedented in American history (e.g., the record keeping involved was on a scale never before attempted). The Social Security Board could ill afford to wait until a definitive Supreme Court ruling was issued before starting to work. Issuance of social security numbers (SSNs), collection of payroll taxes, and payment of the first lump-sum benefits all had to start by January 1937. And the Board would have to hire staff, acquire facilities, set up record keeping procedures, and a million other things before then. All of which it did, without knowing whether its actions were constitutional. By the time of the court's ruling in May 1937, more than 26 million SSNs had been issued around $150,000,000 in taxes had been collected a dozen or so benefit claims had already been paid, and there were about 150 local field offices in operation around the country.

So we can well imagine the tension felt by the Board's employees as the court assembled on that Monday morning in late May to hand down its rulings. The Board's General Counsel, Thomas Eliot, has given us a description of the moment:

" Finally came the great Monday--Monday was the Court's 'decision day'--when the Chief Justice announced the name of the first case to be decided (Helvering vs. Davis, in which the constitutionality of old age insurance was challenged) and, signaling that the Court's opinion was to be read by its author, nodded to --Justice Cardozo. Victory! My letter of May 25 began: Dear Ma 'n' Pa--Yesterday was a big day! I hadn't really expected the decision until next week. The result itself was not so surprising, but gratifying nevertheless. Late yesterday afternoon Lois and I went down to see Miss Perkins and split a bottle of (domestic!) champagne with her! " 7

Shown leaving the Supreme Court Building after the rulings are a happy group of Administrators (left to right): Murray Latimer, Railroad Retirement Board Chairman R. Gordon Wagenet, Unemployment Compensation Director Arthur J. Altmeyer, Chairman of the Social Security Board and Frank Bane, Executive Director of the Social Security Board. Notes & References

1. Quoted in Niskanen, William, "Spending legacy of a 60-year-old ruling," Washington Times , Tuesday January 30, 1996, pg. A19.

2. Schlesinger, Arthur M., Jr., The Age of Roosevelt: The Coming of the New Deal , Houghton Mifflin, 1988 American Heritage Library edition. Pgs. 308-309.

3. Quoted in Leuchtenburg, William E., The Supreme Court Reborn: The Constitutional Revolution in the Age of Roosevelt , Oxford University Press, 1995. pgs. 133-134.

4. According to Leuchtenburg's compelling history of this episode op. cit. Although the court-packing plan never made it to the Senate floor for a vote, and although various straw polls showed the plan losing by only a narrow margin, the national sentiment was overwhelmingly against the plan. President Roosevelt's political power was so damaged by the episode that his Secretary of Agriculture (and later Vice President) Henry Wallace would eventually say: "The whole New Deal really went up in smoke as a result of the Supreme Court fight." (Cf. Leuchtenburg, op. cit ., pg. 158.)

5. The other "switch in time" happened on the morning of May 18, 1937 when President Roosevelt, who was breakfasting in bed, received a messenger with a letter of resignation from Justice Van Devanter. This gave the President the opportunity to appoint another liberal Justice, further strengthening his hand. And when it became clear following the Social Security Act rulings that the Court had indeed shifted course, support for the court-packing plan turned to opposition and ultimately the plan was defeated (cf. Leuchtenburg, op. cit ., pgs. 143-144.).


Has Court-Packing Worked Before?

My Bloomberg Opinion column is about President Biden’s new “Supreme Court reform” commission. One of the topics I take up is whether FDR’s attempt to pack the Court succeeded in intimidating the justices.

The story goes that in 1937 Justice Owen Roberts stopped blocking New Deal legislation because he feared court-packing. He had voted to strike down minimum-wage laws, but joined a majority that upheld a minimum wage weeks after Roosevelt announced his plan to expand the court. It was “the switch in time that saved nine,” a paraphrase of a comment that columnist Cal Tinney made at the time.

There are, however, reasons to doubt this popular account. Most historians agree that the minimum-wage decision was reached before FDR’s announcement, and that opposition to the court-packing effort was unmistakably building before the decision came down.

I go on to address whether today’s justices are likely to be intimidated by the Court-packers.


Watch the video: Βρετανία-καύσιμα: Ο πανικός στράγγιξε έως και το 90% των αντλιών βενζίνης σε πρατήρια καυσίμων (January 2022).