On January 20, in his second inaugural address, Roosevelt spoke of the plight of millions of citizens “denied the greater part of what the very lowest standards of today call the necessities of life.” A third of the nation, he added without exaggeration, was “ill-housed, ill-clad, ill-nourished.” He interpreted his landslide victory as a mandate for further reforms, and with his prestige and his immense congressional majorities, nothing appeared to stand in his way. Nothing, that is, except the Supreme Court.
Throughout Roosevelt’s first term the Court had stood almost immovable against increasing the scope of federal authority and broadening the general power of government, state as well as national, to cope with the exigencies of the Depression. Of the nine justices, only Louis Brandeis, Benjamin N. Cardozo, and Harlan Fiske Stone viewed the New Deal sympathetically. Four others—James C. McReynolds, Willis Van Devanter, Pierce Butler, and George Sutherland— were intransigent conservatives. Chief Justice Charles Evans Hughes and Justice Owen J. Roberts, while more open-minded, tended to side with the conservatives on many questions.
Much of the early New Deal legislation, pushed through Congress at top speed during the hundred days, had been drafted without proper regard for the Constitution. Even the liberal justices considered the National Industrial Recovery Act unconstitutional (the Schechter decision was unanimous).
In 1937 all the major measures of the second hundred days appeared doomed. The Wagner Act had little chance of winning approval, experts predicted. Lawyers were advising employers to ignore the Social Security Act, so confident that the Court would declare it unconstitutional.
Faced with this situation, Roosevelt decided to ask Congress to shift the balance on the Court by increasing the number of justices, thinly disguising the purpose of his plan by making it part of a general reorganization of the judiciary. A member of the Court who reached the age of seventy would have the option of retiring at full pay. Should such a justice choose not to retire, the president was to appoint an additional justice, up to a maximum of six, to ease the burden of work for the aged jurists who remained on the bench.
Roosevelt knew that this measure would run into resistance, but he expected that the huge Democratic majorities in Congress could override any opposition and that the public would back him solidly. No astute politician had erred so badly in estimating the effects of an action since Stephen A. Douglas introduced the Kansas-Nebraska bill in 1854.
Although polls showed the public fairly evenly divided on the “court-packing” bill, the opposition was vocal and influential. To the expected denunciations of conservatives were added the complaints of liberals fearful that the principle of court packing might in the future be used to subvert civil liberties. What, Senator Norris asked, would have been the reaction if a man like Harding had proposed such a measure? Opposition in Congress was immediate and intense; many who had cheerfully supported every New Deal bill came out against the plan. The press denounced it, and so did most local bar associations. Chief Justice Hughes released a devastating critique; even the liberal Brandeis—the oldest judge on the court—rejected the bill out of hand.
For months Roosevelt stubbornly refused to concede defeat, but in July 1937 he had to yield. Minor administrative reforms of the judiciary were enacted, but the size of the Court remained unchanged.
The struggle did result in saving the legislation of the Second New Deal. Alarmed by the threat to the Court, Justices Hughes and Roberts, never entirely committed to the conservative position, beat a strategic retreat on a series of specific issues. While the debate was raging in Congress, they sided with the liberals in upholding first a minimum wage law of the state of Washington that was little different from a New York act the Court had recently rejected, then the Wagner Act, and then the Social Security Act. In May Justice Van Devanter retired and Roosevelt replaced him with Senator Hugo Black of Alabama, a New Dealer. The conservative justices thereupon gave up the fight, and soon Roosevelt was able to appoint enough new judges to give the Court a large pro-New Deal majority. No further measure of significance was declared unconstitutional during his presidency. The Court fight hurt Roosevelt severely. His prestige never fully recovered. Conservative Democrats who had feared to oppose him because of his supposedly invulnerable popularity took heart and began to join with the Republicans on key issues. When the president summoned a special session of Congress in November 1937 and submitted a program of “must” legislation, not one of his bills was passed.
World History
