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The Court-Packing Debacle of 1937 (Blueprint for the Obama Court???)
American Chronicle ^ | 6/24/2007 | Liam Martin

Posted on 10/28/2008 10:18:27 AM PDT by markomalley

Alexander Hamilton, discussing the importance of the American Supreme Court, wrote: “in a republic [the Court] is a no less excellent barrier to the encroachments and oppressions of the representative body. And it is the best expedient which can be devised in any government to secure a steady, upright, and impartial administration of the laws” (Hamilton 464). The independence of the courts, contended Hamilton and the Federalists, was central to their proper function as a protector of the people’s rights. The Court was sacred and integral to the American ideal of liberty; subsequently, great measures were taken to ensure its protection from the executive and legislative branches, thus strengthening its image as a precious judicial body which would forever remain above politics. Since 1787, much has changed in the United States: the government has been repeatedly re-shaped by the ever-changing world environment and sentiments of the American people, the economy has continuously waxed and waned, and policies have developed and been eliminated to deal with these changes. The Supreme Court, however, while undoubtedly not impervious to these shifts, has maintained its image and continues to exert power through its independence.

Nearly one-hundred-and-fifty years after the inception of the Constitution, as the newly elected Franklin Delano Roosevelt launched one of the most extensive progressive eras in American history, the resilience of the Court would once again be felt. Having just defeated the incumbent, Herbert Hoover, for the 1932 presidency, the young and charismatic Franklin Roosevelt rode into Washington with a plan designed to recuperate the greatly ailing American society. In the famous “First Hundred Days” of his presidency, Roosevelt introduced a series of legislation aimed at industrial recovery, establishment of minimum wages, increasing employment, and regulating business. As an indication of the power of the “Honeymoon Period,” and the benefit of a majority in both the House and Senate, FDR was able to breeze through these proposals, marking the beginning of his progressive “New Deal.” Yet, while Roosevelt benefited from the fact that the country and Congress largely favored the New Deal legislation, big business conservatives and a fair number of Republicans expressed deep opposition to the national consensus. Containing four staunch conservatives and two additional moderate conservatives, the Supreme Court presented a viable base of attack for these anti-New Dealers.

Starting in 1934, the Supreme Court began hearings on a number of suits questioning the constitutional validity of the New Deal bills. The Court, allying with big business and anti-regulation proponents, ruled against FDR on “almost every New Deal provision it considered” (Abraham 317). Frustrated by these rulings, FDR did not keep quiet. He spoke out against the Supreme Court frequently and criticized the justices for their inability to perceive the negative effects their decisions would have on the progress of American society. Yet Roosevelt’s reactions were not quite as caustic as they might have been. As the upholders of American liberty and justice, the Supreme Court presented a formidable challenge to any plans FDR could conceive to limit their power, and an open attack on the Court would have endangered the popularity Roosevelt had thus far gained. FDR, in essence, was forced to approach the issue cautiously. He avoided any mention of the Court during his re-election campaign in 1936, and remained highly secretive and exclusive in his plan to deal with the Court’s disobedience.

When FDR finally did devise the proposal he felt would succeed, dubbed “The Court-Packing Bill,” he discovered that the power of the Court was too great, and was ultimately defeated in the Senate. This cautious approach and his failure to pass the bill left a mark on FDR’s image, and demonstrated yet again the seemingly eternal power and independence of the Court.

The “Four Horsemen” v. FDR

Consisting of three moderate liberals, four staunch conservatives, and two moderate conservatives, the Court provided the exact forum through which big business and the Republicans could gain repeals of FDR’s New Deal bills. The liberal justices, who were by no means exclusively progressive, were Louis “Old Isaiah” Brandeis, Harlan F. Stone, and Benjamin N. Cardozo. The moderate conservatives were Chief Justice Charles Evan Hughes, referred to endearingly as “Solomon” for his wisdom, and Owen J. Roberts, referred to not so endearingly as the “Swinger” for his inconsistent rulings. The four conservative justices, who would present the biggest challenge to FDR and his New Deal, were known collectively as the “Four Horsemen” (Willis Van Devanter, James C. McReynolds, George Sutherland, and Pierce Butler). Not only were these “Horsemen” conservative and anti-New Deal, a number of them also demonstrated personal dislike for Roosevelt himself. Justice McReynolds, for instance, stated in response to rumors that he may retire: “I’ll never retire as long as that crippled son-of-a-bitch is still in the White House” (Leuchtenburg 121). These personal sentiments towards Roosevelt, coupled with the structure of the Court and the disproportionate division of liberal and conservative justices, would eventually present a significant threat to the progress of the New Deal.

It was in January of 1935 that the Supreme Court, in repealing Section 9(c) of the National Industrial Recovery Act (NIRA), knocked down the first of many bills it would receive related to the New Deal legislation (Abraham 317). Later that month, in Adkins v. Hospital, the Court ruled to repeal a New York State minimum wage law for women; in Morehead v. Tipaldo, the Court again attacked minimum wages as unconstitutional; in U.S. v. Butler, the Court effectively repealed the entire Agricultural Adjustment Act of 1933, aimed at providing growth to the ailing agricultural industry; and on “Black Monday,” May 27, 1935, in three 9-0 decisions, the Court invalidated the NIRA, the Frazier-Lemke mortgage moratoria, and, in Humphrey’s Executor v. U.S., circumscribed the President’s power to remove members of the independent regulatory commissions (Leuchtenburg 89). Within sixteen months, the Court had essentially rejected every New Deal provision it had considered. The “Four Horsemen,” along with “Solomon” and the “Swinger,” had struck, and it would be FDR’s responsibility to respond.

Roosevelt’s reaction, and the reaction of the players involved in his quest to modify the courts, was exemplary of the power he recognized the judiciary to possess. From the start, the President failed to gain the support of a number of influential politicians and administration members he had hoped to utilize. The first United States female cabinet member, Frances Perkins, for example, seemed a viable candidate to help devise and push forward a plan to modify the Court. As Leonard Baker pointed out in his book, Back to Back, Perkins “had power available to her—contacts and influence with the politically potent American labor leaders” (Baker 11). Yet, occupied by the labor riots and sit-down strikes that were so common during the Great Depression, Perkins was unable to contribute to the Court issue. The charismatic Arizona Senator, Henry Fountain Ashurst (Chairman of the Senate Judiciary Committee), and Texas Representative, Hatton Sumners (Chairman of the House Judiciary Committee), were also expected to be of great use to Roosevelt in his quest to garner the support of the Congress. Sumners, however, vehemently opposed FDR’s attacks on the courts, and Ashurst, the diplomat that he was, found neutral ground on the issue and managed to provide little, if no, assistance to the administration. Roosevelt’s Vice President, John “Cactus Jack” Garner, lastly, demonstrated his dislike for FDR’s approach to the Court issue when he “held his nose and turned his thumb down” to a group of reporters following an address by Roosevelt concerning the Court (Baker 14). He also once described his President as “the most destructive man in all American history” (Baker 14). In short, many of the people from whom Roosevelt had hoped to capture support were either unable or unwilling to become involved.

As an indication of his general ad hoc manner of leadership, Roosevelt turned instead to non-political characters. While FDR did include those administration officials who were willing and available to support him—Harold Ickes (Secretary of the Interior), Homer Cummings (Attorney General), James A. Farley (Postmaster General), and the Solicitor General, Stanley Reed, were among the administrative players FDR included to help design a Court reform—Roosevelt also brought in a number of legal specialists from outside the administration to help formulate a constitutional solution. Samuel I. Rosenman, for instance, a District Court justice, was contacted by FDR and encouraged to try his hands at advising on the Court issue. Donald Richberg, a prominent labor attorney, corresponded with Roosevelt on the legality of various plans. And W.W. Gardner, who eventually devised the infamous court-packing plan, also played a role in advising FDR.

Cautious Origins of the Court-Packing Plan

Late in 1935, with his advisers in place, and the Court continuing to threaten the future of New Deal legislation, Roosevelt was quickly growing anxious to more effectively exert his influence. A constitutional amendment that would reduce the power of the Court, or allow Roosevelt to control it more feasibly, was the first course of action taken into consideration. Some legislators, impatient and frustrated by the arguably unconstitutional judicial review of Congressional legislation, suggested an amendment that would make explicit grants of power to Congress. Others advocated implementation of a requirement that the Court have a 7-2 majority to repeal legislation. Still others called for a complete removal of judicial review, granting full power of legislation to the legislative and executive branches (Pusey 7). With a growing population of Americans expressing discontent with the conduct of the Court, and a fair amount of Senators and Representatives in support of an amendment, it appeared to be a viable option.

Roosevelt opted to forego this approach for various reasons. Senator George Norris, for one, noted that “it would be an absolute impossibility to pass [an amendment] through the Senate or the House by the necessary two-thirds majority in order to submit it to the states” (qtd. in Leuchtenburg 92). In order to obtain this two-thirds majority, FDR and his advisers believed, “the Court would have to antagonize a much larger portion of the nation before it would be politically safe to challenge it” (Leuchtenburg 92). Moreover, the varying amendments, as Merlo J. Pusey indicated in his book, The Supreme Court Crisis, would presumably create conflict amongst the amendment proponents. A constitutional amendment is a lengthy process, even without a conflict as to what exactly the amendment proposes, and time was not in abundance, especially as the Supreme Court would soon be ruling on the fate of the Social Security Act. With these issues in mind, Roosevelt and his administration accordingly decided that an amendment did not constitute a favorable option.

Having eliminated this possibility, Roosevelt and his aides resumed their exhaustive search for a solution that would provide both constitutional validity and a less-than transparent indication of the administration’s ulterior motives in modifying the Court. Rosenman and Cummings were among the first to suggest a plan that would grant Roosevelt the power to pack the courts—in essence, to appoint new justices to the existing group. Gardner and Reed, having met with the President on this issue, immediately set to work investigating it as an option. In a subsequent memo to FDR regarding the proposal, Gardner posited in an overwhelmingly supportive manner that, “of the many propositions, this is the only one which is certainly constitutional and . . . may be done quickly and with a fair assurance of success” (Leuchtenburg 115). Unlike the amendment proposals, a packing of the courts would provide a quick solution and would maintain the constitutionality necessary to pass it. With Gardner’s report, and the enthusiasm for the bill from Cummings and Richberg, FDR soon adopted the idea, and instructed Cummings to draft it in such a way as to conceal its true intentions.

Cummings quickly found his solution: the ages of the Supreme Court justices. Three of the justices, Hughes, Van Devanter, and Brandeis, possessed nicknames relating to their excessive ages, and only Justice Owen Roberts, at age sixty-two, was below sixty-five years of age. Most indeed, were above seventy, and Brandeis was eighty-one. Known collectively as the “Court of Methuselahs,” the justices were susceptible to an attack on their ages and on the effect it might be having on their ability to judge efficiently and effectively (Leuchtenburg 85). When drafting The Judiciary Reorganization Bill of 1937, later dubbed “The Court-Packing Bill,” Cummings was sure to structure its general approach around this issue, proposing that the President be granted power to appoint an extra justice for every sitting justice over the age of 70½. This would downplay Roosevelt’s desire to disregard the Court’s rulings and instead emphasize his concern for the competency of the Court and his subsequent determination to reform it. In fact, in his final proposal to Congress, Roosevelt stated: “A part of the problem of obtaining a sufficient number of judges to dispose of cases is the capacity of the judges themselves. . . This brings forward the question of aged or infirm judges” (qtd. in Leuchtenburg 133). Therefore, with the average age of the justices at a disturbing plus seventy, the introduction of a constitutional and efficient plan for judicial reform, and a growing public desire for societal and economic change, FDR had ample incentive to adopt the Court-packing plan.

The Plan is Announced

Despite the cautious measures Roosevelt and his advisers had taken to ensure the constitutionality of the plan and to mask their true intentions in reforming the courts, the public and Congress were quick to attack The Judiciary Reorganization Bill as an attempt to strip the Court of its power, and to place that power, instead, into the hands of the executive. In his diary, Senator Henry Ashurst indicated the negative sentiment expressed by the public following the announcement of FDR’s plan: “an angry ocean of adverse opinion is now rolling over Eff Dee. Some observers believe that he has been toppled from his dizzy peak of popularity and that his prestige is gone. . . [His] proposal is condemned by the press as ‘indirect,’ ‘immoral,’ and ‘too clever’” (qtd. in Baker 38).

More surprising than the lack of support from the public and press was the reaction from a number of FDR’s politically potent allies. Ashurst and Sumners, as Chairmen of the Senate and House Judiciary Committees, respectively, provided no assistance to Roosevelt, and Sumners even openly criticized FDR, giving the plan “Hell, specifically and generally” (Baker 8). Burton K. Wheeler, an influential Montana Senator, who had been expected to help garner Senate votes for the bill, ultimately led the opposition against the packing of the courts, an act which William Leuchtenburg described as “a stunner” to Roosevelt and his administration (Leuchtenburg 91). As mentioned, even FDR’s Vice President, John Garner, demonstrated an aversion to the bill and criticized Roosevelt as a usurper. The opposition from these high-profile congressional and administration figures further antagonized the public and the Congress to the packing of the courts, and rendered unlikely any chances of the bill’s success in the Senate.

Furthermore, as the bill approached a vote, Justice Van Devanter, one of the “Four Horsemen,” retired; the Supreme Court, in a series of pro-New Deal rulings, upheld the Social Security Act; and, with the aid of the “Swinger,” Justice Roberts, the Court also reversed its prior rulings on minimum wage laws. No longer possessing any impetus for anti-Court action, and facing severe opposition from the Congress and public, the bill flopped dramatically in the Senate, 70-20. One of the most popular presidents in the history of the United States had been defeated by his own partisan Senate, and the Court had again asserted its power and independence.


The effects of Franklin Delano Roosevelt’s plan to pack the Court were wide-ranging. William Leuchtenburg, in his book, The Supreme Court Reborn, listed a number of them: “It helped blunt the most important drive for social reform in American history, . . . it deeply divided the Democratic Party, . . . the middle-class backing Roosevelt had mobilized in the 1936 campaign ebbed away, . . . [and] it undermined the bipartisan support for the New Deal” (156-160). Beyond these secondary effects, however, the cautious methods utilized by FDR and his aides, and the seemingly inevitable conclusion of the court-packing incident, had the paramount effect of yet again demonstrating the power and resilience of the American judicial system, and specifically the Supreme Court. Even as the American people and Democrat-controlled Congress grew increasingly frustrated with the Court’s rulings in the New Deal cases, the country was still quick to defend the Court against any restriction to its power or independence. This institution had been designed to protect justice and liberty; Roosevelt, as popular and influential as he was, would not be allowed to tamper with it.

TOPICS: Crime/Corruption; Culture/Society; Government; Politics/Elections
KEYWORDS: fdr; obamanation; socialism
What Barry Hussein has in mind will make FDR seem like a conservative. With Pelosi and Reid as his henchmen, along with solid majorities in both houses, they could easily tack on a court-packing maneuver as an amendment hidden deep inside a 1,000 page "economic stimulus" bill.

Once that's done, Barry could nominate as many people as he wants for the Supreme Court. Four conservative justices too many to overcome, add two more justices. Nine justices too many to overcome, make the court have 21 justices....

1 posted on 10/28/2008 10:18:28 AM PDT by markomalley
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To: markomalley

Another judge with whom I was good friends and I were talking about this a couple months ago and wondering why no one had yet thought of it.

2 posted on 10/28/2008 10:24:06 AM PDT by Klepto
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To: markomalley

He won’t have to “pack” the court. In 1935 the court was conservative. Today’s court is one justice away from creating the Obama kingdom.

3 posted on 10/28/2008 10:28:13 AM PDT by Terry Mross
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To: markomalley

This is what I have been saying. The latest issue of the ABA Journal has a cover story that recommends increasing the number of justices, increasing diversity and having term limits. This is very serious. They are intending to take over the entire government.

4 posted on 10/28/2008 10:28:24 AM PDT by Pinetop
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To: Terry Mross

Hitler took over via the Courts!

5 posted on 10/28/2008 10:48:28 AM PDT by Calif4Bush (Proud Moosehead)
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To: Calif4Bush

FDR killed the American Dream and placed the country on the path to the Obamanation that it has become.

6 posted on 10/28/2008 10:58:30 AM PDT by LALALAW (one of the asses whose sick of our "ruling" classes)
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To: markomalley

With this bunch of marxists nothing would be beyond their reach.

Their real goal though it a constitutional crisis and convention. During which they could enshrine all sorts of new rights and eliminate the one that prevents them from having absolute tyranny.

7 posted on 10/28/2008 11:01:12 AM PDT by Ouderkirk (I will not vote for Obama not because he is black, but because he is RED)
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To: markomalley
I think Americans are somewhat unique in that en masse we seem to have an instinctive knowledge of what is wrong or right. Not 100% of the time, but the massive outpouring against the bailout, the surge of support for Palin, among other things, makes me take heart that many Americans have a recessed "pioneer memory" that comes to the fore when needed. That's why I believe Obama will be defeated. I have to believe because the alternative really really stinks....
8 posted on 10/28/2008 11:04:04 AM PDT by visualops ( or visit my freeper page)
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To: Terry Mross

All they need to do is find some little thing and impeach and remove one justice. They will probably target Justice Thomas.

9 posted on 10/28/2008 11:08:49 AM PDT by MediaMole
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To: markomalley
Nine justices too many to overcome, make the court have 21 justices....

I have been saying this for years!! A Democrat supermajority w/a Democrat President will increase the number of Justices on the SCOTUS, forever cementing Liberalism in our Judicial system!!

We must not let that happen. Hussein must lose on Election Day.

10 posted on 10/28/2008 11:12:27 AM PDT by Recovering_Democrat (A vote for Hussein is insane!)
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To: markomalley
Excellent post!
Not being an attorney nor involved with law in any way, my education continues.

It appears that at least three books have been written concerning Supreme Court "crises." They all dealt with threats to the independent judiciary by the Executive or the Legislative branches.

The current horror story developing is initiated by the Supreme Court itself. Having usurped both executive and legislative functions with impunity for a number of years now (penumbras?), it is ready to take over the country, with the help of a majority of the legislature and possibly the Executive.

Where does that leave the ordinary working citizen, when both actual criminals and the welfare class and its supporting bureaucratic industry have been deemed to hold the power to spend, without any duty to pay?
What is the name of the system of government where the recipients of compulsory charity (aka welfare) rule?

What will be the fate of the greatest political system to date, where equality of opportunity, free exchange and private enterprise created the most powerful society in history?

I assumed I would not live long enough to see the destruction of a great idea. I might have been wrong.

11 posted on 10/28/2008 11:22:40 AM PDT by Publius6961 (Change is not a plan; Hope is not a strategy.)
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To: Publius6961
Having usurped both executive and legislative functions with impunity for a number of years now . . .

Quite true, but it has been done with quiet approval from the other branches. Let the courts make the tough decisions; they don't have to face voters.

It is the same with federal bureaucracies. Congress transfers legislative power to unelected zombies, whose rules have the force of law, without having to deal with angry voters.

The campaign finance law was a perfect example. President Bush and more than a few members of Congress openly pronounced it unconstitutional, yet passed it anyway because they assumed the courts would kill it.

Avoid tough issues, pass them to the Courts. No one can get politically hurt. What a great system.

12 posted on 10/28/2008 11:47:51 AM PDT by Jacquerie (Acorn & CRA - Reparations by other means.)
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13 posted on 10/28/2008 12:08:41 PM PDT by Calif4Bush (Proud Moosehead)
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