The “court-packing plan” of 1937 was the controversial attempt by President Franklin D. Roosevelt to enlarge the Supreme Court so that it would make more favorable rulings on New Deal programs.
In a remarkable period from May 1935 to May 1936, the Supreme Court had invalidated a number of major New Deal measures, including the National Industrial Recovery Act and the Agricultural Adjustment Act. The reasoning in those decisions suggested, moreover, that the Social Security Act and the National Labor Relations Act (Wagner Act) were likely to be overturned as well, and that a federal wages and hours law that President Roosevelt had in mind would stand no chance. One obvious possibility to protect the New Deal from judicial veto was a constitutional amendment to limit the Court’s power or to augment the authority of the Congress in economic and social areas. But agreeing upon wording proved difficult, and any amendment would need approval by two-thirds majorities in each house of Congress and then ratification by 36 states—a slow and uncertain process at best, especially when the Roosevelt administration believed that quick action was needed in order to safeguard programs made necessary by the Great Depression.
Congress also had the authority to alter the number of judges on the Supreme Court and other federal benches, and had done so in the past. Many of the unfavorable decisions, moreover, had been decided by narrow 5-4 and 6-3 votes, with four conservative justices—Willis Van Devanter, James C. McReynolds, George Sutherland, and Pierce Butler—consistently voting against the New Deal, often joined by Owen J. Roberts and Chief Justice Charles Evans Hughes. The liberal wing of the Court—Justices Louis D. Brandeis, Harlan Fiske Stone, and Benjamin N. Cardozo— believed that the Constitution was expansive enough to support most New Deal programs and that in any case the Court should more prudently exercise its power of judicial review.
On February 5, 1937, Roosevelt announced his Judicial Procedures Reform Bill, which was quickly dubbed the “court-packing bill.” If a federal judge who had served at least 10 years did not retire six months after reaching age 70, the president could appoint a new judge to the bench— up to as many as six to the Supreme Court and 44 to lower federal courts. (The average age of Supreme Court justices, not coincidentally, was 71.)
Roosevelt’s proposal set off a furor. He had launched the bill with no advance warning to key congressional leaders and with no public mention in the 1936 presidential campaign or otherwise. He claimed he wanted a younger and more efficient judiciary, when he plainly wanted a more responsive and liberal one. Conservatives feared that the bill was part of an administration plan to subordinate the legislative and judicial branches to the executive branch. Many liberals were also unhappy, upset not only by Roosevelt’s tactics but worried about what a different kind of president might do with such powers. Even so, it was widely assumed that the court-packing bill would pass, given Roosevelt’s landslide victory in the election of 1936 just a few months earlier and his apparent power in the overwhelmingly Democratic Congress.
But the proposal encountered insuperable obstacles. Conservative Democrats joined with Republicans in working against it, and liberal Democrats often were passive at best. Chief Justice Hughes made it plain that the Court was neither inefficient nor behind in its work. In the famous “switch in time that saved nine,” Hughes and Roberts joined in 5-4 decisions that upheld the National Labor Relations Act in April and the Social Security Act in May, and in May conservative justice Van Devanter retired. With a liberal Supreme Court evidently assured, the court-packing bill’s chances faded quickly, even after FDR agreed to a slightly revised version and became more forthright about his real purpose. Public opinion, so far as it can be measured, evidently turned against the proposal, too. Roosevelt, uncharacteristically politically tone-deaf, persevered nonetheless, but met humiliating defeat.
In the aftermath, Roosevelt claimed that he lost the battle (the court-packing bill) but won the war (a more liberal Supreme Court). He was partly right, for the Court would not invalidate another piece of New Deal legislation; and as vacancies occurred on the Supreme Court, Roosevelt was able to form a more liberal “Roosevelt Court.” But Roosevelt lost more than the court-packing bill. He also lost a cooperative Congress that would approve liberal legislation, as the disaffection of conservative Democrats over court-packing helped produce the conservative coalition in Congress that would stymie and limit the New Deal for the remainder of Roosevelt’s presidency. And although the Court had apparently changed direction in 1937 (some scholars believe that the Court was trending toward a more expansive view of government policy in any event) and ratified the modern regulatory welfare state, it retained its powers of judicial review and would exercise them robustly in the years and decades to follow.
Further reading: Joseph Alsop and Turner Catledge, The 168 Days (Garden City, N. Y.: Doubleday, 1938); William
E. Leuchtenburg, The Supreme Court Reborn: The Constitutional Revolution in the Age of Roosevelt (New York: Oxford University Press, 1995).
World History
