Packing the Court

During the Great Depression of the 1930s, President Franklin D. Roosevelt’s New Deal economic relief programs revolutionized the relationship of private markets to the state and dramatically expanded the scope of services American citizens would come to expect from their federal government. In its own time, the New Deal proved extraordinarily controversial. Though occurring amid a recession of unparalleled duration and severity, such direct governmental intervention in the American economy seemed to many unusual in the wake of 1920s conservatism. In this vein, the U.S. Supreme Court struck down several major New Deal initiatives—both by the federal and state governments—between 1934 and 1936 as unconstitutional expansions of government power. While certain measures, like a federal law restricting gold ownership and the creation of the Tennessee Valley Authority, passed Supreme Court scrutiny, a litany of others (including the National Industrial Recovery Act, Agricultural Adjustment Act, and New York’s minimum wage law) were struck down.

By late 1936, popular media divided the Court into two warring factions. The conservative “Four Horsemen” —Justices Pierce Butler, James McReynolds, George Sutherland, and Willis Van Devanter— who consistently opposed New Deal relief efforts, and the liberal “Three Musketeers” —Justices Louis Brandeis, Harlan Stone, and Benjamin Cardozo— who were more amenable to Roosevelt’s programs. Chief Justice Charles Evans Hughes and Justice Owen Roberts were considered the Court’s “swing votes,” though the former more often allied with the Musketeers and the latter with the Horsemen. After Roosevelt’s smashing reelection mandate on November 3rd over Kansas Governor Alf Landon, die-hard New Dealers and White House aides began planning for an assertive push against Supreme Court obstruction in the President’s second term.

75 years ago yesterday, February 5, 1937 the Judicial Procedures Reform Bill was proposed in Congress. Modeled closely on a proposal Justice McReynolds had offered in 1914 as Woodrow Wilson’s Attorney General, the bill would permit the President to expand the Supreme Court’s membership from nine to 15. He could appoint a new Justice for each sitting Justice over age 70. At the time, all Four Horsemen as well as Brandeis and Hughes, fit the bill – which meant six new appointments. Derided by opponents as Roosevelt’s “court packing plan,” the bill received an early boost from Senate Majority Leader Joseph Robinson, an Arkansas Democrat and key Roosevelt ally. Meanwhile Vice President John Nance Garner led the effort for House passage. Roosevelt explained and endorsed the bill in his March 9, 1937 Fireside Chat, and as far as pundits were concerned, the fight was on.

What Happened Next?
A series of events through the spring and summer derailed Roosevelt’s plan, though some in ways that helped his greater judicial agenda. On March 29, the Court issued a 5-4 opinion in West Coast Hotel Co. v. Parrish that upheld Washington state’s minimum wage law. Justice Roberts had provided the liberal side a crucial fifth vote, a stark reversal from his stance on New York’s law the previous year; his jurisprudential change of heart would be known as “the switch in time that saved nine.” With Roberts beginning to side more reliably with Hughes and the Musketeers during the Court’s decisions near the end of that term, court packing no longer seemed necessary even to many Democrats. Then on May 18, Justice Van Devanter announced his retirement at age 78, granting Roosevelt the immediate opportunity to appoint a New Deal-friendly replacement and robbing his court packing plan of any perceived urgency. The same day, the Senate Judiciary Committee rejected the bill by a 10-8 vote, issuing a scathing report that called it “a needless, futile and utterly dangerous abandonment of constitutional principle.” The final blow to court packing came on July 14, when Senate Majority Leader Robinson died suddenly at age 64. Garner informed the President that “You are beat. You haven’t got the votes.” The White House abandoned the legislation in late July and prepared for confirmation of Roosevelt’s new Supreme Court nominee, Hugo Black.

The late Chief Justice William Rehnquist characterizes the failure of Roosevelt’s court packing plan as a lost battle en route to a victorious war for the administration. Though taking on the Supreme Court shattered the President’s post-election political capital and divided the New Deal coalition heading into a sharp 1937-1938 recession, Roosevelt would eventually appoint eight Justices and cement a lasting liberal majority on the Court. Two Roosevelt appointees, Justice Black and Justice William Douglas, would serve into the 1970s, and the Court remained accordingly liberal-minded until about that time. More importantly, legislative interventions such as minimum wages, workplace regulations, and welfare expenditures that faced uphill constitutional battles in the 1930s have become staples of federal power, facing little credible opposition since 1937, though some vocal and popular political elements today espouse reversing these and other New Deal legacies.