Must Joe Robinson Die? Reflections on the 'Success' of Court Packing

By Schapiro, Robert A. | Constitutional Commentary, Winter 1999 | Go to article overview

Must Joe Robinson Die? Reflections on the 'Success' of Court Packing


Schapiro, Robert A., Constitutional Commentary


History may be radically contingent or it may be overdetermined. Crushing a small creature may have drastic results,(1) as may saving the life of a person meant to die.(2) On the other hand, shooting a Tyrannosaurus rex may have no discernible effect on history.(3)

Are various constitutional episodes more like the butterfly, seemingly slight, but producing dramatic effects, or like the dinosaur, seemingly grand, but which may be erased without a trace? One need not find textualism extinct to conclude that in this regard, constitutional language may be more dinosaur than butterfly. A brief detour into non-counterfactual history presents the evidence. How would constitutional law change if the words "equal protection of law" were removed from the Fifth Amendment? Presumably, not very much.(4) What if the drafters of the Eleventh Amendment had specified that the provision barred only suits against states by citizens of other states? Again, res ipsa loquitur.(5) In neither instance has the particular constitutional language proved especially significant. But what about grander constitutional events? Can altering one historical conjuncture transform all that follows? To explore this question, I consider one of the most notorious aspects of the twentieth century's greatest constitutional moment:(6) President Franklin Roosevelt's failed plan to "pack" the United States Supreme Court.

Buoyed by a landslide victory in the election of 1936 and increasingly frustrated by a Supreme Court that was striking down key features of the New Deal, President Roosevelt decided to launch a frontal attack on the judicial opposition. On February 5, 1937, President Roosevelt presented a judicial reorganization bill to Congress. The proposed legislation would have allowed him to appoint an additional Justice to the United States Supreme Court for every member of the Court who refused to retire or resign within six months after turning 70.(7) The plan would have given Roosevelt six appointments immediately and would have permanently increased the size of the Court to 15.

In early July 1937, it appeared that some version of the "court-packing" plan would likely become law.(8) But all that changed with an unexpected passing. On July 14, 1937, Joe Robinson, the Majority Leader of the United States Senate who spearheaded the President's congressional efforts, was found dead in his bedroom, the apparent victim of a heart attack.(9) The reorganization plan died with the Majority Leader.(10) What if Senator Robinson had survived the grueling congressional debates and the torrid Washington summer and had shepherded the President's proposal safely through Congress?

The warnings of the bill's opponents could not have been more dire. The Report of the Senate Judiciary Committee cautioned:

   [The bill's] ultimate operation would be to make this Government one of men
   rather than one of law, and its practical operation would be to make the
   Constitution what the executive or legislative branches of the Government
   choose to say it is--an interpretation to be changed with each ...
   administration.(11)

Would passage of the bill have succeeded in undermining the constitutional order? Would it have safeguarded the wishes of the majority against an out-of-touch Court?

As it was, the proposal itself produced both substantial benefits and extraordinary harms for the President. I would like to suggest that a different disposition of the bill would not have altered these consequences.

The plan exacted a heavy political toll, hindering the President's domestic and foreign policy agenda.(12) President Roosevelt's dogged efforts to pass the court-packing plan energized his opponents and alienated his friends.(13) An ultimate legislative victory would not have appeased either group, nor would congressional approval have lessened the charges of interference with the judiciary.

On the other hand, President Roosevelt believed that the proposal achieved much of its purpose, even in defeat.

The rest of this article is only available to active members of Questia

Sign up now for a free, 1-day trial and receive full access to:

  • Questia's entire collection
  • Automatic bibliography creation
  • More helpful research tools like notes, citations, and highlights
  • Ad-free environment

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Project items

Items saved from this article

This article has been saved
Highlights (0)
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

Citations (0)
Some of your citations are legacy items.

Any citation created before July 30, 2012 will labeled as a “Cited page.” New citations will be saved as cited passages, pages or articles.

We also added the ability to view new citations from your projects or the book or article where you created them.

Notes (0)
Bookmarks (0)

You have no saved items from this article

Project items include:
  • Saved book/article
  • Highlights
  • Quotes/citations
  • Notes
  • Bookmarks
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited article

Must Joe Robinson Die? Reflections on the 'Success' of Court Packing
Settings

Settings

Typeface
Text size Smaller Larger
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Full screen

matching results for page

Cited passage

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited passage

Welcome to the new Questia Reader

The Questia Reader has been updated to provide you with an even better online reading experience.  It is now 100% Responsive, which means you can read our books and articles on any sized device you wish.  All of your favorite tools like notes, highlights, and citations are still here, but the way you select text has been updated to be easier to use, especially on touchscreen devices.  Here's how:

1. Click or tap the first word you want to select.
2. Click or tap the last word you want to select.

OK, got it!

Thanks for trying Questia!

Please continue trying out our research tools, but please note, full functionality is available only to our active members.

Your work will be lost once you leave this Web page.

For full access in an ad-free environment, sign up now for a FREE, 1-day trial.

Already a member? Log in now.