Selected Papers of Homer Cummings, Attorney General of the United States, 1933-1939

By Carl Brent Swisher; Homer S. Cummings | Go to book overview
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7. The "Court Plan"

[After the decisions of the Supreme Court holding the National Industrial Recovery Act and other New Deal measures unconstitutional, almost every important office of the administration was flooded with suggestions as to methods of avoiding the stultifying effects of judicial review. Most of these suggestions were referred to the Department of Justice, where hundreds of them were collected. Those which seemed at all feasible were studied with care, finally reduced to a list of five, and exhaustively discussed in an elaborate, composite memorandum dated December 10, 1936. These five suggestions were: (1) that Congress declare that its own determination of fact, such for instance as what constitutes interstate commerce, should be conclusive in the courts; (2) that Congress, through its power over procedure, declare the number of judges necessary to invalidate an act of Congress, fixing the number so as to prevent the defeat of a legislative program by a bare majority of the court; (3) that Congress withdraw from the courts the jurisdiction to pass upon the constitutionality of federal legislation; (4) that the number of Supreme Court justices be increased outright so as to insure liberal decisions; and (5) that prompt retirement of judges be made attractive through the reduction of annual retirement compensation by progressively greater amounts for each year that a judge remained on the bench after the age of seventy. In the light of the analysis made, none of these proposals seemed acceptable.

The fact remained, however, that the presidential election of 1936 had retained the administration in power by an overwhelming majority, and that the vote presumably indicated widespread approval of the administration program and the desire that it should be carried forward. Yet a major segment of it had been declared void by the Supreme Court. The spending program remained, including relief and loans to private borrowers and to the states; but even here a shadow had been cast by the Agricultural Adjustment Act decision. Unless its policies could be made effective, the administration faced the prospect of discredit, even at the hands of its friends.

Under these circumstances, in a special message to the Congress on February 5, 1937, the President proposed a reorganization of the judicial branch of the government. The President's papers on this subject will appear in the volume of his "Public Papers and Addresses" for 1937(see The Public Papers and Addresses of Franklin D. Roosevelt, 1935, pp. 13-14). The essence of his judiciary proposal was the appointment of an

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