The Great Depression of the 1930’s was the nation’s
grimmest economic crisis since the founding of the American
Republic. After the 1932 elections, Franklin D. Roosevelt
introduced a series of innovative remedies—his
New Deal—but the entire recovery effort seemed
threatened when the United States Supreme Court invalidated
significant pieces of its legal foundation. Eventually
Roosevelt proposed his so-called “court-packing”
bill to circumvent the Court’s unfavorable rulings.
The events that followed qualify as one of the stranger
chapters in the constitutional history of the United
States.
Roosevelt brought relentless energy and creativity to
Washington following his election in 1932. The problems
before him were unprecedented in depth and scope. Since
the crash of the stock market three years earlier, five
thousand banks had failed, wiping out over nine million
accounts. At least twenty-five percent of the work force
was unemployed; national income was less than half what
it had been in 1929. In the first hundred days of the
new administration, Roosevelt and his team of advisors
attacked the crisis with a panoply of legislative measures
– an emergency banking act, a series of employment
relief acts, a bill to refinance defaulted mortgages,
and laws shoring up agriculture and regulating Wall
Street. New instrumentalities of government were conceived
– among others, the Agricultural Adjustment Administration
(AAA), the Public Works Administration (PWA), the National
Recovery Administration (NRA) – thereby introducing
the “alphabet agencies” that soon became
a familiar feature of the New Deal.
Despite the widespread popularity of these initiatives,
Roosevelt faced opposition from several quarters, including
most of the nation’s newspaper publishers, many
business and financial interests, entrenched states’
rights supporters and advocates of small government.
Since the Gilded Age of the 1890’s, those forces
had controlled America’s economic establishment
and, after a brief eclipse during the progressivism
of the Theodore Roosevelt and Woodrow Wilson Administrations,
they had assumed renewed primacy during the 1920’s.
Bolstering their position was a legal regime overseen
by the United States Supreme Court. In a line of cases
following the end of Reconstruction, the Court had built
a doctrinal superstructure conducive to modern laissez-faire
industrialism and hostile to the claims of laborers
and the indigent. Legal concepts like substantive due
process had exalted private property and freedom of
contract while limiting the power of government to regulate
or otherwise interfere with entrepreneurship.
Roosevelt anticipated a recalcitrant Supreme Court when
he took office. He had criticized it even before his
election, noting during his presidential campaign that
the Court was “in the complete control”
of the Republican Party and thus implicitly an instrument
of laissez-faire. The emergency measures of the new
administration’s first hundred days were developed
without illusions about the Court’s ability to
stymie them. Several decisions during the previous decade
had applied substantive due process—the idea that
certain rights (such as property rights) are so fundamental
as to be beyond governmental regulation—to strike
down state laws that regulated businesses by imposing
extra costs upon them, for example, through minimum
wages or safety rules. Shortly prior to the 1932 election,
as if in warning to Roosevelt, the Court had invalidated
on substantive due process grounds an Oklahoma law requiring
the licensing of ice-making facilities. A wall seemingly
had been installed around private business and government
told to keep out.
Of particular concern to the New Dealers was a four-judge
coterie on the Court, Justices Butler, McReynolds, Sutherland
and Van Devanter, who collectively embraced a settled
anti-regulatory ideology hostile to interventionist
government. Each of the so-called Four Horsemen was
over the age of seventy in 1932. All four regularly
voted in a block wherever substantive due process or
delegation of powers issues were implicated, needing
only a single recruit from the remaining five justices
to defeat governmental initiatives that burdened private
enterprise. The other justices were less predictable.
Justice Brandeis, the eldest, was a Wilson appointee
with strong progressive leanings but a predilection
for limited government and small business. The Chief
Justice, Charles Evans Hughes, a more conservative figure,
had nevertheless served as Governor of New York and
was open-minded about regulation. Two other New Yorkers,
Justices Cardozo and Stone, were genuine intellectuals
who brought both compassion and respect for prior precedent
to their deliberations. Owen Roberts, the youngest of
the justices, was a career prosecutor and a 1930 Hoover
appointee from Pennsylvania (at age fifty-eight) with
no prior involvement in any legislature or business
and thus an unknown on the constitutional issues of
the day. His vote soon turned out to be critical.
During the first twenty-four months after Roosevelt
was elected, his Administration successfully steered
clear of direct confrontation with the Supreme Court.
Meanwhile, two 5-4 decisions by the Court in 1934 upholding
state-based regulations hinted that a majority of the
justices were sensitive to the emergency. Significantly,
Roberts had voted against the Four Horsemen in both
cases, and in one of them, Nebbia v. New York,
he had written the majority opinion upholding price
controls on the sale of milk. The resulting sense of
relief among anxious New Dealers, however, proved premature.
In January 1935, the Court issued its first ruling on
a New Deal statute, striking down a provision of the
National Industrial Recovery Act (NIRA) that had imposed
new controls on the production and pricing of oil. The
vote was an overwhelming 8-1 against the New Deal measure.
The decision in the “Hot Oil” case was the
first of a series of devastating losses for the Roosevelt
legislative program in the Supreme Court. After surviving
(by a 5-4 margin) a challenge to the government’s
currency regulation powers in the “Gold Clause”
cases, the Administration saw its Railroad Retirement
Act invalidated 5-4, with Roberts joining the Four Horsemen
in declaring the law unconstitutional. Shortly thereafter,
on “Black Monday,” May 27, 1935, the Court
issued three destructive decisions – Schechter
Poultry (the infamous “sick chicken”
case) cut the heart out of the NIRA, Louisville Bank
struck down the Frazier-Lemke Act limiting mortgage
foreclosures, and Humphries’ Executor scaled back
the President’s ability to control the make-up
of certain federal regulatory bodies. Each of the decisions
was unanimous. Subsequent rulings included the invalidation
of the wages-and-hours and price-control mechanisms
of the Bituminous Coal Conservation Act (5-4, with Roberts
the swing vote), invalidation of the processing tax
in the Agricultural Adjustment Act (6-3, with Roberts
writing for the majority), and vacatur of a New York
State minimum wage law (5-4, Roberts again), a ruling
with worrisome implications for a vast area of industrial
regulation.
Roosevelt and his supporters looked on aghast at the
path of destruction these decisions wreaked upon economic
regulation generally and the New Deal in particular.
Attorney General Homer Cummings wrote privately, echoing
the views of many in the administration and throughout
the country, “I tell you, Mr. President, they
mean to destroy us . . . . We will have to find a way
to get rid of the present membership of the Supreme
Court.” Roosevelt himself kept his public criticisms
limited and his plans close to the vest, although shortly
after Schechter he observed at a press conference
“We have been relegated to the horse-and-buggy
definition of interstate commerce.” Even Herbert
Hoover was reported as suggesting a constitutional amendment
to restore at least to the states “the power they
thought they already had.”
Amending the Constitution, logical as it might seem,
was not the remedy favored by those whom Roosevelt put
to work exploring ways around the Court’s obstructions.
It was not just a matter of finding the right wording
and getting it through Congress or a constitutional
convention. As one of the young brainstormers, Thomas
Corcoran, observed to Harold Ickes, a Roosevelt advisor,
there were too many states “that would naturally
be against a broadening amendment or in which money
could be used to defeat it.” There was thus talk
of instead limiting by statute the Court’s ability
to invalidate legislation. Numerous such bills had been
introduced in Congress following the Court’s attack
on progressive era legislation during the 1920’s,
and Roosevelt’s congressional allies continued
the process following the most recent Court reversals.
But even after the overwhelming victory by Roosevelt
and the Democrats in the 1936 elections, the prospects
of jurisdictional limitation seemed doubtful, particularly
if the Court itself could ultimately rule on its constitutionality.
The most obvious other alternative was to change the
composition of the Court. Getting the most elderly justices
to retire and appointing friendly replacements would
have been the ideal curative. Indeed, Van Devanter and
Sutherland had both indicated their wish to retire,
but the Administration’s 1933 Economy Bill cutting
pension benefits had ironically discouraged these two
scourges of the New Deal from voluntarily stepping down.
Any attempt to compel retirement by legislative fiat
would run up against the life tenure protection in Article
III of the Constitution, so the mandatory removal approach
was eventually discarded.
There remained the possibility of changing composition
by increasing the size of the Court through congressional
act. Extensive precedent existed for such a move. Article
III of the Constitution, which establishes the judicial
branch, does not prescribe the number of justices of
the Supreme Court. The Founders left that detail to
legislation. Congress in the first Judiciary Act (1789)
had set the number of Supreme Court seats at six. Thereafter,
the number had varied from five (1801) to seven (1807)
to nine (1837) to ten (1863) back to seven (1866) and
finally to nine again (1869). In January 1937, Attorney
General Cummings privately showed Roosevelt a formula
that would link an increase in the size of the Court
to the number of incumbent justices who reached the
age of seventy and declined to retire, capped at a maximum
of six new justices. The idea had been suggested by
Edwin Corwin, a Princeton political scientist, who himself
had received it from a government professor at Harvard,
Arthur Holcombe. (The complex genesis of the plan is
definitively mapped out in William Leuchtenberg, The
Supreme Court Reborn (Oxford 1995).) This approach
appealed strongly to the President and became the core
of the plan he ultimately advanced.
On February 5, 1937, Roosevelt sent his court-packing
bill to Congress in the form of proposed legislation
to “reform” the judiciary generally. His
accompanying statement was framed not in terms of an
obstructionist Supreme Court but rather as a response
to overcrowded federal court dockets and the special
problem occasioned by constitutionally imposed judicial
life tenure, i.e., “the question of aged or infirm
judges—a subject of delicacy yet one which requires
frank discussion.” The President pulled no punches,
bemoaning that a decline in “mental or physical
vigor leads men to avoid an examination of complicated
and changed conditions.” He added, “older
men, assuming that the scene is the same as it was in
the past, cease to explore or inquire into the present
or the future.” Thus, under the proposed new law,
when any federal judge (not just on the Supreme Court)
with at least ten years’ service remained on the
bench for more than six months after reaching the age
of seventy, the President could add a new judge to that
court. The maximum was six new justices for the Supreme
Court and forty-four for the rest of the federal judicial
system.
The small group of advisors who had secretly worked
with Roosevelt in developing the bill and its rationale—Cummings,
Corcoran, Stanley Reed, Samuel Rosenman and Donald Richberg—were
among the most constitutionally savvy lawyers in the
Administration. All were satisfied it met constitutional
standards. And all assumed the huge new Democratic majority
in both Houses of Congress, beneficiaries of the President’s
popularity in the 1936 national elections, would rapidly
approve the measure. Roosevelt, however, had miscalculated.
By keeping his thinking under wraps until the plan was
unveiled, he had done nothing to build support behind
the scenes among legislative allies. While respected
Administration backers like Joseph T. Robinson, the
Senate majority leader, immediately announced for the
bill, others such as House Speaker William Bankhead
and House Judiciary Chairman Hatton Sumners resented
the surprise and emerged lukewarm or outright hostile.
Public sentiment was also largely negative, stirred
up by vociferous opposition from a predominantly conservative
press.
As the weeks passed and the debate intensified, it became
clear to the administration that the court reform bill
faced rocky going. One thing was sure—Congress
would not quickly approve it.
Then came the unexpected, an about-face by the Supreme
Court. On March 29, 1937, the Court handed down its
decision approving a minimum wage law in Washington
State, West Coast Hotel v. Parrish. The margin
was 5-4, with Roberts voting with the majority. The
decision effectively reversed the ruling that had invalidated
New York’s similar wage law the previous June.
Two weeks later, Roberts was on the winning side in
five major decisions upholding the National Labor Relations
Act. On May 24, the Court found the Social Security
Act and related state legislation constitutional with
the same five-man majority, supported surprisingly in
one of the decisions by two of the Four Horsemen, Sutherland
and Van Devanter. By this time, Van Devanter had announced
his intention to retire, and it was clear Roosevelt
would soon be able to appoint a new justice of his choice
without any need for court-packing.
Meanwhile, the legislative prospects of the reform bill
grew increasingly dimmer. When Vice President John Nance
Garner as presiding officer of the Senate refused to
support the bill, and when the Senate Judiciary Committee
(dominated by Democrats) disapproved it, the proposal
sustained a knockout punch. In July it was recommitted
from the Senate floor to the Committee, where it was
transformed into a minor procedural law. The compositional
element died. New Dealers could always say their court-packing
plan was never actually voted down. But the reality
was clear—the proposal had lost its momentum,
was deeply unpopular, and for all practical purposes
was soundly defeated.
Yet on the doctrinal front, the Administration had won
the war. Beginning with Parrish, the decisions
of the Supreme Court upholding government’s power
to regulate set the pattern for the balance of Roosevelt’s
presidency and for nearly a half century thereafter.
The ideology that had stymied the New Deal and parallel
state legislative efforts to control private economic
relationships went into eclipse. The Court had gone
through what some commentators have described as a “constitutional
revolution.” Yet the apparent stimulus for turn-about
was widely attributed to the court-packing initiative,
which had ironically constituted one of Roosevelt’s
most embarrassing defeats.
Several other facts reinforced the irony. Many contemporary
observers noted the timing of Justice Roberts’
apparent reversal from a swing voter against regulatory
legislation to a swing voter in favor of it, a dramatic
change described famously as the “switch in time
that saved nine.” By all indications, Roberts
had been influenced by the court-packing bill. The facts,
however, are more complex. Roberts actually rendered
his critical vote in the Parrish case at least two months
before Roosevelt announced his plan. Chief Justice Hughes
had delayed releasing the decision to accommodate Justice
Stone, who had been temporarily out of action due to
illness. Moreover, Roberts had never shared the substantive
due process ideology of the Four Horsemen. As he stated
in his 1934 Nebbia decision for the 5-4 majority
upholding New York’s controls on milk prices:
“Neither property rights nor contract rights are
absolute.” If that was Roberts’ view nearly
three years before the Court-packing initiative, something
else must have been going on in all those decisions
that had rejected so much of the New Deal’s regulation.
Under scrutiny, the change in the Supreme Court’s
outlook emerges as a peculiar chapter in a complicated
story, with more twists to it than a simple switch by
a swing man in reaction to Roosevelt’s plan to
pack the Court. As the legal historian Barry Cushman
has persuasively suggested, constitutional doctrine
was already evolving in a direction favorable to a more
interventionist role for government well before Roosevelt
introduced the court “reform” bill. Most
of the earlier decisions invalidating New Deal legislation
were 9-0 or 8-1 rulings, not 5-4 squeakers. Those decisions
reflected a view shared by even the more progressive
justices that the new laws had been sloppily drawn and
poorly defended. Roosevelt’s draftsmen soon learned
from these mistakes and avoided them in subsequent legislation
which the Court sustained. While it is certainly true
that the eventual breakup and replacement of the Four
Horsemen eased the Court in that direction, the fact
remains that technically tighter draftsmanship greatly
helped the New Deal cause in the Court’s later
rulings.
Accordingly, it seems unlikely the court-packing plan
played much of a role in inducing the Supreme Court
to change direction. On the other hand, there is also
little doubt the plan had a harmful effect on Roosevelt’s
legislative program for the balance of the New Deal.
Six months after achieving the most one-sided electoral
victory in modern times, the Democrats were divided
and in disarray; the unpopularity of the court-packing
plan had undermined the President’s moral authority
and given lukewarm party members an excuse to abandon
him. Never again would the Democratic leadership gather
the momentum that had brought such consistent legislative
successes during the first four years of the Administration.
“The whole New Deal,” declared Henry Wallace,
“really went up in smoke as a result of the Supreme
Court fight.”
Perhaps the most vexing question is why Roosevelt did
not just drop the plan when the battle with the Court
was clearly won. No one knows the answer for sure. A
most gregarious of presidents, FDR was also among the
most guarded and inscrutable. Was it a misplaced feeling
of empowerment derived from the 1936 elections? Was
it the sort of internal stubbornness that had won the
day with Congress in the past? Robert H. Jackson, a
Roosevelt confidant and future Supreme Court appointee,
reached this general assessment: “The President
was not a legalistic-minded person. He was not an economic-minded
person. He was a strong thinker in terms of right and
wrong, for which he frequently went back to quotations
from the Scriptures. Certain things just were not right
in his view.” Having witnessed so many rulings
by the Supreme Court that, in his view, just were not
right, Roosevelt had set upon a remedial course that
he stuck with to the end. How the drama played out is
a study in the capriciousness of history.
Special thanks to Albena Petrakov, law clerk at
Menaker & Herrmann LLP, for her research on the
the changing composition of the Supreme Court.
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