Court-Packing and Compromise

By Cushman, Barry | Constitutional Commentary, Summer 2013 | Go to article overview

Court-Packing and Compromise


Cushman, Barry, Constitutional Commentary


The controversy precipitated by Franklin D. Roosevelt's Court-packing Plan is among the most famous and frequently discussed episodes in American constitutional history. During his first term as President, Roosevelt had watched with mounting discontent as the Supreme Court declared unconstitutional a series of measures central to his New Deal. Aging justices whom Roosevelt considered reactionary and out of touch had struck down the National Industrial Recovery Act ("NIRA"), the Agricultural Adjustment Act ("AAA"), federal railway pension legislation, federal farm debt relief legislation, critical portions of the Administration's energy policy, and state minimum wage legislation for women. In the spring of 1937 the Court would be ruling on the constitutionality of such major statutes as the National Labor Relations Act ("NLRA") and the Social Security Act ("SSA"), and a number of Roosevelt advisors doubted that the Court as then comprised would uphold those measures. The odds might have improved had FDR had an opportunity during his first term to appoint one or more justices to the Court, but no vacancies had occurred.

In November of 1936, Roosevelt enjoyed a spectacular reelection victory, winning the electoral college vote by a margin of 523-8. In the wake of this remarkable demonstration of public support, the President decided to move against the Court. On February 5, 1937, he sent to Congress a proposal to "reorganize" the federal judiciary. The bill contained a provision that would have empowered the president to nominate to the Supreme Court one additional justice for each sitting justice who had not retired within six months following his seventieth birthday. At the time there were six justices fitting that description. Accordingly, the bill, if enacted, would have permitted the president to appoint six new justices immediately, thereby enlarging the membership of the Court to fifteen. The bill ultimately was rejected by the Senate, and never received serious consideration in the House. (1) A number of scholars have argued that its prospects for congressional passage were never very bright. (2) It is often noted, however, that Roosevelt had numerous opportunities to accept compromise proposals for dealing with "the Court problem," a number of which promised much better chances of enactment. (3) Yet the president repeatedly rejected such proposals, insisting instead that congressional leaders press forward with his own. (4) AS Professor James Patterson put it, FDR "remained serenely confident, refusing even to discuss the possibility of compromise." (5) A number of reasons have been offered to explain Roosevelt's recalcitrance, and I do not dispute them here. Instead, I will suggest that such explanations are incomplete, and that a fuller understanding of the president's calculations makes his posture appear more rational than is commonly thought.

The reasons for Roosevelt's rejection of some alternatives to enlargement of the Court's membership are well understood. The president and his advisors elected not to pursue proposals to curtail the Court's appellate jurisdiction, because this would leave lower federal courts hostile to the New Deal with the unsupervised power of judicial review. (6) Proposed bills to require a supermajority of the justices to invalidate federal legislation were viewed as likely to be declared unconstitutional. (7) Moreover, if such a statute were upheld, it might reduce the opportunities for the Court to protect citizens against infringements of their civil liberties. (8)

The president also rejected the possibility of amending the Constitution to confer upon Congress greater regulatory authority than the Court had been prepared to recognize. (9) First, Roosevelt believed that the problem lay not with the Constitution but instead with the Court, and proposing such an amendment might be seen as conceding that the Court's decisions invalidating New Deal measures had been correct. …

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