Court Packing and Constitutional Revolution

Written by: Michael Parrish, UC San Diego

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On January 15, 1937, five days before his second inauguration, President Franklin Roosevelt wrote to Harvard law professor Felix Frankfurter: “Very confidentially, I may give you an awful shock in about two weeks. Even if you do not agree, suspend judgment and I will tell you the story.” Shock, indeed. On February 5, while meeting with leaders of Congress and his cabinet at the White House, Roosevelt unveiled his proposal to revamp the federal judiciary, including the Supreme Court of the United States.

Officially titled the Judicial Procedures Reform Act, the plan would allow the president to nominate an additional judge to the Court for every sitting judge who had served at least 10 years, had reached the age of 70 years, and did not step down within six months. If approved by Congress, the legislation would have given the president up to six new appointments to the Supreme Court. To the Congressional leaders who mostly sat and listened in stunned silence, Roosevelt explained that the legislation had become necessary because the aging justices on Charles Evans Hughes’s court could not keep up with their daunting caseload. As proof, he noted they had refused in the recent term to hear 90 percent of the petitions presented to them for review. Some justices, he concluded, “are often unable to perceive their own infirmities.”

This political cartoon from January 1937, titled Oliver Twist, depicts Roosevelt asking Congress for more power for his New Deal programs.

The president’s initial rationale displayed ignorance of the Court’s procedures and offered ammunition to his soon-swelling crowd of critics. His critics thought Roosevelt was acting deceptively by not admitting his political motivation of having the Court endorse the constitutionality of New Deal programs. The Court’s oldest member, Justice Louis Brandeis, was 80 years old and had often voted to support New Deal legislation; so, too, had the chief justice, then age 75 years. Since the 1920s, moreover, Congress had given the justices complete discretion to manage their docket. Quickly realizing his gaffe, Roosevelt adopted a new argument for the proposed legislation in a radio fireside chat, in which he framed the issue as a struggle between popular government and a nonelected judicial oligarchy bent on preventing needed social and economic reforms to cure the nation’s festering economic problems. “We cannot yield our constitutional destiny to the personal judgment of a few men who, fearful of the future, would deny us the necessary means of dealing with the present,” he said.

But the damage had been done. Soon denounced as Roosevelt’s “Court-packing plan,” the proposal drew opposition not only from Republicans but also from key Democratic leaders, including the chairs of both House and Senate judiciary committees. And in early March, Chief Justice Hughes, with the approval of both liberal Justice Louis Brandeis and conservative Justice Willis Van Devanter, sent a letter to the latter body demolishing the president’s arguments about the slow pace of the Court’s decision-making. Not only were his colleagues abreast of their decisions, Hughes affirmed, but also adding additional justices would only lengthen discussions and delay the resolution of cases.

By January 1937, Roosevelt had ample reasons to be angry at the chief justice and his eight colleagues, who, since 1934, had often held key New Deal legislation such as the National Industrial Recovery Act and the Agricultural Adjustment Act to be unconstitutional. However, the president feared the same judicial vetoes would kill pending New Deal legislation in 1937, including the National Labor Relations Act, which was intended to secure collective bargaining rights for the fledging labor unions in mass-production industries.

Roosevelt had chosen a simple, statutory route to change his luck in the Court, but his method had embittered his own legislative leaders with its secrecy, and by his failure to consult the best legal minds available to him. He had rejected a constitutional amendment as too cumbersome and time consuming, but he had avoided a simple revision of the federal judicial pension rules that might have effectively hastened several retirements by the Court’s septuagenarians. Nor had Roosevelt anticipated that the Court would have to give a constitutional green light to state-sponsored reforms and to his own 1937 agenda. But beginning in March, Hughes and his colleagues controlled the fate of these measures, and ultimately the fate of the President’s Judicial Procedures Reform Act, as well.

The Hughes Court, pictured with members from 1932-1937, had a record of declaring New Deal legislation unconstitutional.

Although its chances of success were lower than 50-50 from the beginning, the president’s plan confronted Hughes with a serious external threat to judicial independence and the separation of powers. Hughes, always concerned with the safety of his Court, knew this challenge had been provoked in part by the Court’s inability to resolve critical contradictions in its own constitutional precedents, some stretching back to the late nineteenth century. Unless these could be resolved, the Court faced more confrontations with Congress, state legislatures, and, ultimately, the American people, which had just given Roosevelt one of the largest elector victories in history.

The Court’s contradictory precedents possibly originated in the oldest issue in the nation’s constitutional history: federalism, the constitutional balance of powers between national and state authority; and the ability to cope with the myriad problems facing the American people in the grip of the worst economic crisis in their history. Federalism manifested itself in three areas of sharp constitutional dispute: first, the Article I powers given to Congress to tax the American people; second, Congress’s power “to regulate commerce among the states;” and third, the command of the Fourteenth Amendment that “no state shall deprive a person of life, liberty or property without due process of law.” The chief justice managed a very fractured Court on these contentious constitutional interpretations.

Four conservative justices – Willis Van Devanter, George Sutherland, James McReynolds, and Pierce Butler – regarded the Constitution as basically a charter of limitations on both federal and state power, especially in areas touching the rights of property and contract. They flatly rejected government efforts aimed at redistributing economic rewards. Three liberal justices – Louis Brandeis, Harlan Stone, and Benjamin Cardozo – tended to view the Constitution as endowing government with this authority (and therefore allowing these efforts to cope with the economic crisis). Hughes and his younger colleague, Owen Roberts, therefore held the balance of power, with the chief justice often joining the three liberals and Roberts the four conservatives.

The Court had stood united when striking down poorly conceived efforts by the administration to regulate the economy in 1935 – a farm mortgage relief law, the National Recovery Act, and Roosevelt’s removal of a member of the Federal Trade Commission. But Justice Roberts soon infuriated Roosevelt’s supporters when he joined the four conservative judges in overturning three federal laws and one state statute – the Railroad Retirement Act, the Agricultural Adjustment Act, the Bituminous Coal Conservation Act, and a New York minimum-wage provision. Roberts ruled that railroad pensions, agricultural production, and coal mining all remained beyond Congress’s power to regulate “commerce among the states.” Roberts’ vote also killed the New York minimum-wage law for women on the grounds that it infringed “liberty of contract protected by the Due Process Clause,” although, a year earlier, he had upheld the state’s authority to fix minimum prices for milk. Hughes dissented in part in all these decisions. Justice Stone denounced Roberts’s majority opinion in the Agricultural Adjustment case as “a tortured construction of the Constitution.”

Shortly after Roosevelt announced the court-packing plan, the Court surprised the country by upholding a new minimum-wage law from Washington state, one almost identical to the New York measure overturned six months earlier. Roberts now voted with Hughes and the three liberals, which soon gave rise to the idea that Roosevelt’s plan had motivated his about-face. Then, in the second week of April, the same majority sustained Congress’s authority to require collective bargaining for all companies whose labor relations remained an integral part of “commerce among the states.”

In late May, soon after Justice Van Devanter announced his intention to retire, the new Hughes-Roberts majority also upheld the Social Security Act. Hughes’s Court had secured Roosevelt’s New Deal. Had Roosevelt’s proposal forced the justices, especially Roberts, to change their constitutional minds, making “a switch in time that saved nine,” according to one observer in 1937? A close look at the evidence suggests otherwise. Roberts had voted to uphold the second minimum-wage law in December 1936, long before Roosevelt revealed his plan, though the announcement of the decision had been delayed until March, due to Justice Stone’s illness. And the facts of the National Labor Relations Board case presented Hughes and the Court with indisputable evidence that labor-management conflict disrupted and endangered “commerce among the states.” Roosevelt’s massive reelection victory in November 1936 may have swayed some opinion on the Court, but that remains pure speculation.

Despite advice from Congressional leaders, Roosevelt persisted in forcing a vote on his plan even after Van Devanter’s announcement and the Social Security decision. The Senate finally ended the suspense by voting 70 – 20 to send the measure back to committee in July, where it quietly died. The fallout from the battle left many casualties. Roosevelt’s foes in both parties had been energized by his defeat. An economic recession in 1937-1938 further tarnished his stature; only a single new reform measure passed Congress before 1940. Roosevelt appointed eight justices to the Supreme Court before his death in 1945, but Hughes had outmaneuvered him and saved the Court to fight another day.

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Review Questions

1. A key motivation for President Franklin Roosevelt’s plan to reorganize the federal judiciary in 1937 was to

1. more quickly resolve the number of cases pending before the federal courts
2. nominate federal judges sympathetic to his legislative agenda
3. increase the political power of states located between the Mississippi River and the Rocky Mountains
4. reward Republican donors

2. The Supreme Court’s 1935-1937 decisions on New Deal legislation, President Roosevelt’s proposal to reorganize the federal judiciary, and Congress’s response to that proposal all exemplify the principle of

1. checks and balances
2. separation of powers
3. federalism
4. states’ rights

3. Franklin Roosevelt proposed the Court packing plan in 1937 because he

1. was facing a tough reelection campaign in the fall
2. had just won a huge electoral majority
3. faced strong opposition in Congress for his New Deal legislative agenda
4. had overwhelming support in state and lower federal courts for his New Deal programs

4. The major powers granted to the federal government under the Constitution derive from all the following except

1. the power to tax in Article I
2. the commerce clause in Article I
3. the due process clause of the Fourteenth Amendment
4. the reserved powers clause of the Tenth Amendment

5. Constitutional disputes about the relative power of the national and state governments are debates about the interpretation of

1. federalism
2. separation of powers
3. checks and balances
4. judicial independence

6. Before Franklin Roosevelt proposed his plan to reorganize the federal judiciary, the Supreme Court had ruled that New Deal legislation

1. overreached on regulating interstate commerce
2. denied citizens their due process rights
3. delivered constitutionally sound policy to combat the Depression
4. created an unfair tax burden on American citizens

7. The failure of President Franklin Roosevelt’s Court packing plan led to

1. an increase in his popularity and political power
2. Congress’s increased willingness to enact New Deal programs
3. the failure of the principle of checks and balances
4. diminished political support for Roosevelt’s agenda

Free Response Questions

1. Explain why President Franklin Roosevelt proposed his Judicial Procedures Reform Act, otherwise known as the Court-packing plan.
2. Explain how the events surrounding Roosevelt’s court-packing plan illustrate the principle of checks and balances.

AP Practice Questions

“The Courts, however, have cast doubts on the ability of the elected Congress to protect us against catastrophe by meeting squarely our modern social and economic conditions. We are at a crisis in our ability to proceed with that protection. . . . I want to talk with you very simply about the need for present action in this crisis – the need to meet the unanswered challenge of one-third of a Nation ill-nourished, ill-clad, ill-housed. Last Thursday I described the American form of Government as a three horse team provided by the Constitution to the American people so that their field might be plowed. The three horses are, of course, the three branches of government the Congress, the Executive and the Courts. Two of the horses are pulling in unison today; the third is not. Those who have intimated that the President of the United States is trying to drive that team, overlook the simple fact that the President, as Chief Executive, is himself one of the three horses. It is the American people themselves who are in the driver’s seat. It is the American people themselves who want the furrow plowed. It is the American people themselves who expect the third horse to pull in unison with the other two. I hope that you have re-read the Constitution of the United States in these past few weeks. Like the Bible, it ought to be read again and again.”

President Franklin D. Roosevelt, Fireside Chat on Reorganization of the Judiciary, March 9, 1937

Refer to the excerpt provided.

1. The sentiments expressed in the excerpt were most directly shaped by the

1. Articles of Confederation
2. Federalist Papers
3. Bill of Rights
4. Gettysburg Address

2. This excerpt was written in response to

1. the failure of New Deal legislation to solve the ills of the Great Depression
2. criticism of the New Deal by those on the left who felt it did not go far enough
3. conservative Republican members of Congress who tried to block New Deal bills
4. the Supreme Court’s ruling that a significant amount of New Deal legislation was unconstitutional

3. The excerpt from Roosevelt’s fireside chat best reflects which continuity in U.S. history?

1. A belief in the democratic philosophy of the Declaration of Independence
2. The warning about political parties in George Washington’s Farewell Address
3. The belief in compromise, as demonstrated in the Compromise of 1850
4. The need to expand the electorate, as in the Fifteenth and Nineteenth amendments

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Primary Sources

FDR Cartoon Archive. www.nisk.k12.ny.us/fdr/

Roosevelt, Franklin D. “Fireside Chat.” The American Presidency Project. March 9, 1937. https://www.presidency.ucsb.edu/documents/fireside-chat-17

Suggested Resources

Cushman, Barry. Rethinking the New Deal Court: The Structure of a Constitutional Revolution. New York: Oxford University Press, 1998.

Leuchtenburg, William E. The Supreme Court Reborn: The Constitutional Revolution in the Age of Roosevelt. New York: Oxford University Press, 1995.

Moreno, Paul D. The American State from the Civil War to the New Deal: The Twilight of Constitutionalism and the Triumph of Progressivism. Cambridge, UK: Cambridge University Press, 2013.

Shesol, Jeff. Supreme Power: Franklin Roosevelt vs. the Supreme Court. New York: W. W. Norton, 2010.

Simon, James F. FDR and Chief Justice Hughes: The President, the Supreme Court, and the Epic Battle Over the New Deal. New York: Simon and Schuster, 2012.

Solomon, Burt. FDR v. The Constitution: The Court-Packing Fight and the Triumph of Democracy. New York: Walker, 2008.

White, G. Edward. The Constitution and the New Deal. Cambridge, MA: Harvard University Press, 2000.