The Court-Packing Plan as Symptom, Casualty, and Cause of Gridlock

By Cushman, Barry | Notre Dame Law Review, June 2013 | Go to article overview

The Court-Packing Plan as Symptom, Casualty, and Cause of Gridlock


Cushman, Barry, Notre Dame Law Review


By the summer of 1936, President Franklin Roosevelt was convinced that the New Deal was the victim of gridlock. The problem, to be sure, was not in the Congress. During Roosevelt's first term the Democrats enjoyed commanding majorities in both the House and the Senate, (1) and most of the President's legislative agenda had been enacted with bi-partisan support and few dissenting votes. (2) The problem was instead with the federal judiciary, and more particularly, with the Supreme Court of the United States. Though the Court had narrowly upheld the Administration's monetary policy in the Gold Clause Cases (3) early in 1935, it had also struck down the National Industrial Recovery Act's (NIRA) oil program on nondelegation grounds in the Hot Oil Case. (4) Later that spring the Court held that the Railroad Retirement Act of 1934 did not pass constitutional muster. (5) On what New Dealers called "Black Monday" in May of 1935, a unanimous Court finished off what remained of the NIRA in Schechter Poultry, (6) struck down the Frazier-Lemke Farm Debt Relief Act, (7) and held that the President did not have authority to remove a Commissioner of the Federal Trade Commission. (8) In January of 1936, a divided Court invalidated the Agricultural Adjustment Act. (9) A few months later, the Court pronounced the Guffey Coal Act unconstitutional. (10) And although that spring saw the Tennessee Valley Authority survive a constitutional challenge, (11) in June the Court held that the State of New York did not have the power to prescribe minimum wages for women working in industry. (12) In the view of Roosevelt and of many others, a recalcitrant Court was preventing the country from achieving necessary recovery and reform.

The President saw this gridlock as the product of partisan divisions. In a campaign address at Baltimore, Maryland in October of 1932, candidate Roosevelt had observed that "[a]fter March 4, 1929, the Republican Party was in complete control of all branches of the [f]ederal [g]overnment--the [e]xecutive, the Senate, the House of Representatives[,] and, I might add for good measure, the Supreme Court as well." (13) The 1932 elections would place the legislative and executive branches in the control of the Democrats, but the lack of any vacancies during Roosevelt's first term would prevent him from changing the complexion of the nation's highest Court. And though he would greet some early judicial setbacks with aristocratic equanimity, (14) the carnage of Black Monday would prompt him to chastise the Justices for their "'horse and buggy interpretation'" of the Commerce Clause. (15) The negative reaction to this criticism of the Court would lead Roosevelt to keep his own counsel on the issue in future public remarks. (16) He studiously avoided raising the Court as an issue during the 1936 campaign. (17) But privately, as Tommy Corcoran told Henry Hopkins, "the President was thoroughly aroused 'and determined to prevent' the Court from blocking what he believed to be the very fundamentals of our democracy. (18) As Professor Marian McKenna reports, Roosevelt was determined not to "permit the Supreme Court to wreck any more of his attempts to achieve reform and recovery." (19)

Following his landslide re-election in November of 1936, the President began again to air his concerns about the Court. (20) In his Annual Message to Congress delivered on January 6, 1937, (21) Roosevelt alluded to what he regarded as the Court's cramped construction of the Constitution, which was in his view frustrating the efforts of the Administration and Congress to alleviate public suffering. He asserted:

   During the past year there has been a growing belief that there is
   little fault to be found with the Constitution of the United States
   as it stands today. The vital need is not an alteration of our
   fundamental law but an increasingly enlightened view with reference
   to it. Difficulties have grown out of its interpretation; but
   rightly considered, it can be used as an instrument of progress and
   not as a device for prevention of action. 

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