FDR and the Supreme Court

Anyone would be hard pressed to find an American that doesn’t know of the recent Supreme Court decision concerning health-care legislation. Earlier in the year, President Obama publicly called on the Supreme Court not to kill the legislation. While the statements by the President made for fertile material for the commentators and the news outlets, this drama between a US President and the American Supreme Court wasn’t the first time such a confrontation has occurred.

The year was 1937 and President Franklin Delano Roosevelt realized that he had a problem. He had been able to push through his New Deal legislation through Congress just to see several of his programs shot down by the Supreme Court. If this pattern continued then his entire economic package, especially prized programs such Social Security, would be at risk. To make matters worse, there was no indication that he would get an opportunity any time soon to replace a judge unless one died because none were expected to retire right away.

The Hughes Court

On the other hand, he thought, maybe was there an alternative to the morbid choice of waiting for the grim reaper to take away a justice.

What many Americans may not know is that the US Constitution doesn’t specify the number of Supreme Court justices. Article III of the Constitution gives Congress the power to set the size of the court. At the start, the Supreme Court started with six justices and grew to as many as ten justices by 1863. In 1866, Chief Justice Chase requested reducing the number through attrition to seven. Congress agreed and the court reached briefly that number in 1867. Then in 1869, Congress passed the Circuit Justices Act, which brought it back to nine justices.

Knowing this history, FDR decided that if he could get Congress to pass legislation to increase the size of the Supreme Court as it had done before then he could create a court full of friendly justices who would be less likely to overturn his New Deal legislation. Therefore, FDR proposed that for every justice who reached 70 years and 6 months old but refused to retire then he could add a new judge to the Federal Judiciary along with adding another justice to the Supreme Court. The Supreme Court would have a maximum limit of fifteen justices according to the proposed legislation.

Listen to FDR's March 9, 1937 Fireside Chat

Though he publicly used the excuse of trying to reduce the backlog of cases, it was obvious to everyone that his goal was actually to pack the court so that it would rule in his favor. While FDR was publicly very popular, he had made a sizable number of enemies in Congress. Ironically, some of his strongest opponents to this attempt to pack the Court came from members of his own party in the Senate. Add to this the Chief Justice of the Supreme Court, Chief Justice Charles Evans Hughes, punched holes in his argument about a backlog by showing that one didn’t exist. Needless to say, the press had a field day with the proposal issuing scathing editorials and publishing critical political cartoons.

Suddenly, things started to turn around for FDR. Without any change in the justices, the Supreme Court upheld both the Wagner Act as well as the Social Security Act in March of 1937. Then in May, the justice Van Devanter declared that he would retire. While it was too late to save some of his programs, FDR ultimately got the court that he needed and the Judicial Procedures Reform Bill of 1937 died in committee.