Recently, President Joe Biden, possibly hoping to throw a bone to the radical left who have proposed trying “court packing” again for the Supreme Court without following through on what he knows is a bad idea, has initiated through executive order a commission to study the subject of court packing. The time they will examine easily the most will be Roosevelt’s 1937 proposal to pack the court and how that went down. I’m surprised I haven’t done a full post on FDR’s infamous “court packing plan” even though I have brought it up multiple times. It almost feels like I fully covered it, but I haven’t done an official post on it. This is the official “court packing” post of this blog. I shall tell you how the court-packing plan came to be and why it failed.
Our immediate story begins with the Great Depression and the election of that epic game-changer himself, Franklin Delano Roosevelt. Roosevelt had ambitious ideas on the new direction the United States would take in the process of recovering. An overwhelmingly Democratic Congress rapidly passed sweeping legislation within the first 100 days of the administration to address the nation’s ills, including the National Industrial Recovery Act, the Agricultural Adjustment Act, the Tennessee Valley Authority Act, and rendering null and void all gold clauses in contracts. However, things didn’t go so swimmingly due to the Supreme Court. The Supreme Court of the time was at the tail-end of the so-called “Lochner Era” and was struggling with a doctrine known as “liberty of contract”.
On March 1, 1897, the Supreme Court delivered a decision in Allgeyer & Co. v. Louisiana, unanimously employing a doctrine that would be commonly used by the court for the next forty years, that being “liberty of contract”. The Supreme Court had for the first time found that the state had exceeded its police powers in violating an individual’s “right to contract”. The name Lochner comes from the most infamous case from the era, Lochner v. New York (1905), a controversial 5-4 ruling which struck down a New York state law limiting working hours for bakers and produced one of the court’s most famous dissents from Justice Oliver Wendell Holmes Jr., who argued the court was not bound by lassiez-faire doctrine. There is wide agreement among contemporary legal scholars that this case was wrongfully decided. The notion of “liberty of contract” would be used to overturn progressive laws on numerous occasions, but the court would also sometimes uphold them, finding them not to be in excess of police powers.
The New Deal suffered numerous defeats in the Supreme Court, including a unanimous one on the National Industrial Recovery Act in A.L.A. Schechter Poultry Corp. v. United States (1935) as exceeding commerce clause powers, a 6-3 defeat on the Agricultural Adjustment Act in Butler v. United States (1936) as the processing tax was found unconstitutional, a 5-4 one on the Bituminous Coal Act as exceeding commerce clause powers in Carter v. Carter Coal Co. (1936), and another unanimous one for the Frazier-Lemke Farm Bankruptcy Act in Louisville Joint Stock Land Bank v. Radford (1935) as a taking of private property without just compensation. The Supreme Court also came within one vote of ruling the Roosevelt Administration’s gold policies unconstitutional in the Gold Clause Cases, which had this happened, Roosevelt was prepared to defy the Supreme Court like no president had since Andrew Jackson defied the Supreme Court’s ruling on the Indian Removal Act. According to researcher Theresa A. Niedziela (1976), in nine of sixteen key cases before the Supreme Court on the New Deal, the Supreme Court had struck down the laws.
However, the beginning of the end had already come for “liberty of contract” before the announcement of the court packing plan. In 1934, the court ruled in Nebbia v. New York that there was no absolute right to liberty of contract, and Justice Owen Roberts, known as a court moderate, wrote in the majority opinion, “neither property rights nor contract rights are absolute”. The decision was 5-4, with dissent from the “Four Horsemen” (Butler, McReynolds, Sutherland, Van Devanter), or the wing of the court that was wedded to a more absolute interpretation of liberty of contract and a narrow interpretation of the commerce clause. The “Three Musketeers” (Brandeis, Cardozo, and Stone) by contrast, were inclined to uphold New Deal legislation and had broad views of commerce clause power as well as a broad view on what circumstances liberty of contract could be infringed.
1937: Spending Political Capital
In the 1936 election, President Roosevelt won reelection in a landslide, with only Maine and Vermont dissenting on the course of the nation. The House had elected less than 100 Republicans and the Senate less than 20. He had political capital in spades and intended to use it to consolidate even more power. On February 5, 1937, Roosevelt proposed the Judicial Procedures Reform Bill of 1937, or more commonly known by the name New Deal critic Edward Rumely coined, the “court-packing plan”. This measure would have expanded the Supreme Court to fifteen justices, or an additional justice for every justice over 70. Roosevelt justified the plan in a radio address on March 9th, “This plan of mine is not attacking of the court; it seeks to restore the court to its rightful and historic place in our system of constitutional government and to have it resume its high task of building anew on the Constitution ‘a system of living law.’ The court itself can best undo what the court has done” (National Constitution Center). He also made the case based on the justices being old and needing younger justices to ease their workload. While it is true that the Supreme Court has had a history of justices growing too infirm to perform their functions and refusing to leave the bench, the court in 1937 had no such members, and one of the most pro-Roosevelt justices, Louis Brandeis, was at the time of the announcement of the court packing plan eighty years old. Although the proposal was not unconstitutional as the court’s composition had been changed before, the fear was a corruption of separation of powers. Roosevelt had succeeded in getting Majority Leader Joseph Robinson of Arkansas to agree to support the bill, and he in turn as an effective, if autocratic and sometimes even fiery leader, had secured the support of many Democratic senators through personal promises. There were, however, Democrats who did not care for this direction, and one of them was Carter Glass of Virginia. Glass, a man who had once been more on the progressive side of things, was now a conservative who had been one of the earliest detractors from the New Deal and he went on the radio to speak against this plan. He was an institution in Virginia, so he was politically invulnerable to any efforts Roosevelt might otherwise pursue against him. Glass believed at the time that his efforts were doomed, but Roosevelt and supporters were already facing complications, including some significant defections.
In the Senate, Burton K. Wheeler of Montana, who had been Robert La Follette’s running mate on the 1924 Progressive Party ticket, had been the first major Democratic figure to oppose the plan. This was a bad sign as he had previously supported the New Deal in most respects (he dissented on cutting veterans benefits to pay for the New Deal), had objected to Supreme Court rulings against the New Deal, and had even sponsored a major New Deal law, the Public Utilities Holding Company Act. Wheeler feared that this compromising of the separation of powers would eventually result in an executive dictatorship. In June 1937, the Senate Judiciary Committee delivered a devastating blow to the plan with its scathing report. One of the key lines in the report was, “The bill is an invasion of judicial power such as has never before been attempted in this country….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”, and the report concluded, “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” (National Constitution Center). If Biden’s commission does not account for this report in their report, they have not done proper research on the subject.
In the House, Judiciary Committee chair Hatton W. Sumners of Texas was also refusing to get on board with the plan, even though he had backed a lot of New Deal proposals in the past and was personally angered by some of the Supreme Court’s decisions striking down New Deal legislation. The truth was that part of Roosevelt’s problems with justices was self-inflicted. Judicial pensions had been cut by the Economy Act of 1933, which he had promoted and signed, and provided a motivation for two justices among the Four Horsemen (Sutherland, Van Devanter) to stay longer, as they were uneasy about their retirement situation. Sumners thus engineered the passage in the House of substitute legislation that would grant justices retirement at full pay to incentivize them to retire instead of court-packing, approved on a vote of 316-75 on February 10, 1937. The Republicans chose to remain silent as their strategy against court-packing, to not allow the issue to appear partisan. What’s more, Chief Justice Charles Evans Hughes was able to deliver compelling counterarguments to the court packing plan in a letter addressed to Senator Wheeler and signed by Justice Louis Brandeis, disputing that the court needed additional justice to function. Perhaps the bill still had a chance of passage despite these setbacks, but there were two events that placed the final nail in the coffin.
On July 13, 1937, Judiciary chair Sumners announced that the “court packing bill” would remain bottled up in his committee even if the Senate passed it, and stated that “As soon as we take the lash from the heads of these judges over there, some of them will retire. I mean that as a fact. Everybody knows it is a fact. What is the excuse, then, for this bill being pressed any further? To save my life, I cannot figure it out” (Champagne, 48). The other event involved Majority Leader Robinson, who had been under a great deal of stress pushing the court-packing plan (he had been promised a seat on the court should he succeed) and he was becoming overworked. He continued to work long hours despite his physician’s advice against and on July 14, 1937, he was found dead by his housekeeper, having suffered a heart attack at the age of 64. His death allowed numerous Democratic senators to shift course, as they didn’t feel they owed allegiance postmortem. Only a week later, the Senate voted down the court packing plan 70-20, and even some of the administration’s most loyal Senate supporters went with the majority. Although Roosevelt tried to retaliate against those senators who had been most vocal in their opposition to the court packing plan as well as his reorganization plan, the 1938 primaries were a failure to this end and never again did he try to influence Democratic primaries.
The loss on court-packing proved that FDR wasn’t politically invulnerable, as did the 1938 midterms, which produced enough Republican victories to form the Conservative Coalition, an alliance between Republicans and Southern Democrats to limit the New Deal and stop further expansions. Despite losing the court-packing battle and the political setbacks he faced, FDR won the war on changing the Supreme Court. Even before the announcement of the court packing plan, the justices had heard an argument in West Coast Hotel Co. v. Parrish (1937), which was on the constitutionality of Washington’s minimum wage law, and on March 29th they ruled 5-4 that such a law fell within the police powers of the state and was a permissible restriction of liberty of contract. Justice Roberts’ vote to uphold gave rise to the myth of the “switch in time that saved nine”, that his “switch” saved the court from being packed. The truth is that this would be consistent with his opinion in Nebbia on liberty of contract three years earlier and historical evidence indicates that Roberts had voted to uphold the minimum wage law and thus overturn Adkins v. Children’s Hospital (1923), which held that federal minimum wage legislation for women in D.C. was unconstitutional as a violation of liberty of contract, on December 19, 1936, two days after hearing oral arguments (McKenna, 2002). However, this doesn’t mean that politics didn’t play a role for the court. Roosevelt’s overwhelming reelection undoubtedly influenced the course of the court. Indeed, Chief Justice Hughes and Justice Roberts were motivated to vote more frequently to uphold New Deal laws (Devins). The retirement of Justice Willis Van Devanter in May 1937 given the passage of Sumners’ retirement bill with his replacement being New Dealer Hugo Black was also a victory for Roosevelt.
It turned out the court packing plan wasn’t needed, just Roosevelt staying in office. By 1942 only two justices remained who he hadn’t nominated: Harlan Fiske Stone and Owen Roberts, who were now on the conservative wing of the court. A narrow reading of “liberty of contract” died with Parrish and even with an increasingly conservative Supreme Court, it looks like such an interpretation will remain that way. Interpretations of the commerce clause, however, may meet with more limits. The truth is if left-wing Democrats wish for a shift in the Supreme Court, the public will have to elect a Democratic president and a solid Democratic Senate majority. That, and not Roosevelt’s court packing scheme, was what was crucial to shifting the court. He in truth had won the war with the judiciary on November 3, 1936, the day of his landslide reelection. In such divided times, however, getting such a mandate seems unlikely unless one of the parties manages to pull off a train wreck for an election year.
A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495 (1935)
Allgeyer v. Louisiana, 165 U.S. 578 (1897)
Carter v. Carter Coal Co., 298 U.S. 238 (1936)
Champagne, A. (1988). Hatton Sumners and the 1937 Court-Packing Plan. East Texas Historical Journal, 26(1).
Devins, N. (1996). Government Lawyers and the New Deal. William & Mary Law School.
Feldman, N. (2020, October 1). FDR, even at his pinnacle of power, could not ‘pack the court’. Bloomberg Opinion.
Leuchtenburg, W. (2005). When Franklin Roosevelt Clashed With the Supreme Court – and Lost. Smithsonian Magazine.
Lochner v. New York, 198 U.S. 45 (1905)
Louisville Joint Stock Land Bank v. Radford, 295 U.S. 555 (1935)
McKenna, M.C. (2002). Franklin Roosevelt and the great Constitutional war: The court-packing crisis of 1937. New York, NY: Fordham University.
Nebbia v. New York, 291 U.S. 502 (1934)
Niedziela, T.A. (1976) Franklin D. Roosevelt and the Supreme Court. Presidential Studies Quarterly, 6(4), 51-57.
To Pass H.R. 2518 (P.A. 10), A Bill Providing for the Retirement of Justices of the Supreme Court. Govtrack.
To Recommit to the Committee on the Judicial Branch of Government. S. 1392, A Bill to Reorganize the Judiciary Branch. Govtrack.
United States v. Butler, 297 U.S. 1 (1936)
West Coast Hotel Co. v. Parrish, 300 U.S. 379 (1937)