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The Judiciary Reorganization Bill of 1937, frequently called the Court-packing Bill, was a law proposed by United States President Franklin Roosevelt. While the bill contained many provisions, the most notorious one (which led to the name "Court-packing Bill") would have allowed the President the power to appoint an extra Supreme Court Justice for every sitting Justice over the age of 70½. This was proposed in response to the Supreme Court overturning several of his New Deal measures that proponents claim were designed to help the United States recover from the Great Depression. Image File history File links Emblem-important. ... Federal courts Supreme Court Circuit Courts of Appeal District Courts Elections Presidential elections Midterm elections Political Parties Democratic Republican Third parties State & Local government Governors Legislatures (List) State Courts Local Government Other countries Atlas  US Government Portal      For other uses, see President of the United States (disambiguation). ... Franklin Delano Roosevelt (January 30, 1882–April 12, 1945), often referred to as FDR, was the 32nd (1933–1945) President of the United States. ... In order to become a Justice on the Supreme Court of the United States, an individual must be nominated by the President of the United States and approved by the U.S. Senate, with at least half of that body approving in the affirmative. ... The New Deal was the title President Franklin D. Roosevelt gave to the series of programs he initiated between 1933 and 1938 with the goal of providing relief, recovery, and reform (3 Rs) to the people and economy of the United States during the Great Depression. ...

Background

Franklin Roosevelt sought a way to ensure his legislative agenda after the Supreme Court of the United States repeatedly invalidated elements of his New Deal by 5-4 decisions on the grounds that they were unconstitutional, including the Agricultural Adjustment Act in United States v. Butler et al (1936) and the National Recovery Administration in Schechter Poultry Corp. v. United States (1935). Although "inclined to wait until a vacancy naturally occurred on the Court," Roosevelt's first term passed without the opportunity to appoint a justice, a happening virtually unprecedented in the history of the American presidency. Increasingly frustrated, Roosevelt sought a novel means to change the balance of the Court. The Agricultural Adjustment Act (or AAA) (Pub. ... In the case United States v. ... NRA Blue Eagle poster. ... Holding Section 3 of the National Industrial Recovery Act was an unconstitutional delegation of legislative power to the Executive, and was not a valid exercise of congressional Commerce Clause power. ...

Since 1869, by statute, the Supreme Court justices numbered nine. Article III of the U.S. Constitution is silent as to how many justices may serve on the Court at any given time. Instead, the Constitution simply provides that the "judicial Power of the United States shall be vested in one supreme Court..." without specifying the number of justices on that Court. Only the office of "Chief Justice" is self-executing, as it alone is mentioned in the Constitution in Article I, section 3 as the officer responsible for presiding over presidential impeachments. The Chief Justice in many countries is the name for the presiding member of a Supreme Court in Commonwealth- or other countries with an Anglosaxon type of justice, such as the Supreme Court of the United States, the Supreme Court of Canada, the Supreme Court of New Zealand, the Supreme...

Roosevelt and an overwhelmingly Democratic Congress faced a Court that had for 30 years been interpreting the Constitution as espousing the doctrine of "freedom of contract" that proved hostile to New Deal legislation. He came to view the Court's actions as an overextension of judicial authority frustrating the political and economic forces to combat the Great Depression. Roosevelt decried the conservative justices "reading into the Constitution words and implications which are not there, and which were never intended to be there." [1] Emboldened by his landslide victory but faced with the prospect of a hostile court, Roosevelt determined to thwart its ability to block the legislative agenda of his second term. Although the Hughes Court had six justices over the age of 70 and six months, no vacancy loomed in the foreseeable future. Therefore in his first "fireside chat" to the Nation of the second term of his Presidency, he made his case to the American people to support his plan as "the need to meet the unanswered challenge of one-third of a Nation ill-nourished, ill-clad, ill-housed." [2] Federal courts Supreme Court Circuit Courts of Appeal District Courts Elections Presidential elections Midterm elections Political Parties Democratic Republican Third parties State & Local government Governors Legislatures (List) State Courts Local Government Other countries Atlas  Politics Portal      Further information: Politics of the United States#Organization of American political parties The Democratic... FDR shortly after giving one of his famous fireside chats The fireside chats were a series of thirty evening radio talks given by United States President Franklin D. Roosevelt between 1933 and 1944. ...

Time Line:

1935 Jan 7: Panama Refining Co. v. Ryan, 293 U.S. 388 (1935) Held: National Industrial Recovery Act Sect. 9(c) unconstitutional In the case Panama Refining Co. ...

1935 May 6: Railroad Retirement Board v. Alton R. Co., 295 U.S. 330 (1935) Held: Railroad Retirement Act unconstitutional

1935 May 27: A.L.A. Schechter Poultry Corp. v. U.S., 295 U.S. 495 (1935) Held: National Industrial Recovery Act unconstitutional Holding Section 3 of the National Industrial Recovery Act was an unconstitutional delegation of legislative power to the Executive, and was not a valid exercise of congressional Commerce Clause power. ...

1935 May 27: Humphrey's Estate v. U.S., 295 U.S. 602 (1935) Held: President may not remove member of Federal Trade Commission

1936 Jan 6: United States v. Butler, 297 U.S. 1 (1936) Held: Agricultural Adjustment Act unconstitutional Holding The Agricultural Adjustment Act is an unconstitutional exercise of power. ...

1936 May 18: Carter v. Carter Coal Co., 298 U.S. 238 (1936) Held: Bituminous Coal Conservation Act of 1935 unconstitutional

1936 Nov 3: Roosevelt electoral landslide

1936 Dec 16: West Coast Hotel Co. v. Parrish, 300 U.S. 379 (1937) argued Holding Washingtons minimum wage law for women was a valid regulation of the right to contract freely because of the states special interest in protecting their health and ability to support themselves. ...

1937 Feb 5: Conference vote on West Coast Hotel

1937 Feb 5: Judiciary Reorganization Bill of 1937 (“JRB37") announced.

1937 Feb 10: N.L.R.B. v. Jones & Laughlin Steel Corp., 301 U.S. 1 (1937) argued

1937 Mar 9: “fireside chat” re reaction to JRB37

1937 Mar 29: West Coast Hotel Co. v. Parrish, 300 U.S. 379 (1937) Held: State of WA minimum wage law constitutional

1937 Apr 12: N.L.R.B. v. Jones & Laughlin Steel Corp., 301 U.S. 1 (1937) Held: NLRA constitutional Holding Congress had the power, under the Commerce Clause, to regulate labor relations. ...

1937 May 24: Steward Machine Co. v. Davis, 301 U.S. 548 (1937) Held: Social Security tax constitutional Steward Machine Company v. ...

1937 Jun 2: "Horseman" Willis Van Devanter resigns, Hugo Black subsequently appointed Willis Van Devanter (April 17, 1859 - February 8, 1941), associate justice of the United States Supreme Court, January 3, 1911 to June 2, 1937. ... Hugo Black Hugo LaFayette Black (February 27, 1886 – September 25, 1971) was a Justice of the Supreme Court of the United States (1937 - 1971). ...

1937 Jul 14: Senate Majority Leader Joseph T. Robinson dies.

1937 Jul 22: JRB37 referred back to committee to strip “court packing” provisions, 70 - 20.

1938 Jan 18: "Horseman" George Sutherland resigns, Stanley Forman Reed subsequently appointed George Sutherland (March 25, 1862 – July 18, 1942) was an English-born U.S. jurist and political figure. ... For the Indian newspaper editor and British politician, see Stanley Reed Stanley Forman Reed (December 31, 1884 – April 2, 1980) was an Associate Justice of the Supreme Court from 1938 to 1957. ...

Content

Presented as a bill to relieve the workload on elderly judges, the bill would have allowed President Roosevelt to appoint one judge for each sitting judge over age 70 and six months with a new judge with at least ten years experience. Roosevelt would then have the ability to appoint six more Supreme Court justices immediately (presumably possessing a judicial philosophy not hostile to his agenda), increasing the size of the court to 15 members. The Democratic Congress undoubtedly would have summarily confirmed his choices. In Roosevelt's sights were the conservative appointments of the business-oriented Republican Presidents Warren G. Harding and Calvin Coolidge. Because the justices against the New Deal held the majority by only one vote (5-4), even two such appointments would reset the equilibrium in favor of Roosevelt (6-5). Warren Gamaliel Harding (November 2, 1865 – August 2, 1923) was an American politician and the twenty-ninth President of the United States, from 1921 to 1923, when he became the sixth president to die in office. ... John Calvin Coolidge, Jr. ...

Opposition

Top aides suggested alternative judicial reforms—a constitutional amendment allowing a two-thirds vote of Congress to overrule Supreme Court rulings, for example—but Roosevelt would not budge. He also downplayed worries about the disingenuousness of his message, which said his bill was the best solution to an alleged judicial backlog rather than an attack on a Supreme Court exercising its constitutional duties to balance the powers of the executive and judicial branches. Republicans like Herbert Hoover, whom FDR defeated in the 1932 presidential election, accused Roosevelt of attempting "to pack the court." But the president's political enemies did far less damage to his cause than his friends. House Judiciary Committee Chairman Hatton W. Sumners made this ominous statement to colleagues about his support of Roosevelt: "Boys, this is where I cash in my chips." Other conservative Democrats, such as liberal Senator George Norris of Nebraska, who had empaneled a national conference on judicial reform soon after Roosevelt's inauguration, announced his opposition to the court-packing bill. So did fellow-liberal Senator Burton K. Wheeler of Montana, who ultimately became the measure's most vocal foe. Even liberal Justice Louis D. Brandeis, the oldest member of the court, privately expressed his opposition. Herbert Clark Hoover (August 10, 1874 – October 20, 1964), the thirty-first President of the United States (1929–1933), was a world-famous mining engineer and humanitarian administrator. ... Eweisser 16:49, 8 Jun 2005 (UTC) Categories: Possible copyright violations ... Liberalism is an ideology, philosophical view, and political tradition which holds that liberty is the primary political value. ... George William Norris (July 11, 1861 - September 2, 1944) was a U.S. political figure. ... Official language(s) English Capital Lincoln Largest city Omaha Largest metro area Omaha Area  Ranked 16th  - Total 77,421 sq mi (200,520 km²)  - Width 210 miles (340 km)  - Length 430 miles (690 km)  - % water 0. ... credited to the United States Senate Historical Office Burton Kendall Wheeler (February 27, 1882 – January 6, 1975) was a Montana politician of the Democratic Party and a United States Senator from 1923 until 1947. ... Official language(s) English Capital Helena Largest city Billings Area  Ranked 4th  - Total 147,165 sq mi (381,156 km²)  - Width 255 miles (410 km)  - Length 630 miles (1,015 km)  - % water 1  - Latitude 44°26N to 49°N  - Longitude 104°2W to 116°2W Population  Ranked... Louis D. Brandeis Louis Dembitz Brandeis (November 13, 1856 - October 3, 1941) was an important American litigator, Justice, advocate of privacy, and developer of the Brandeis Brief. ...

Debate

Roosevelt promoted the bill in his 9th Fireside Chat, broadcast over national radio on March 9, 1937. (Text and audio.) After submitting his plan to Congress, a heated argument ensued. Some Roosevelt supporters hailed the action as a sign of strong leadership during tough times. However, opponents seized on Roosevelt's explanation of why the bill was necessary. William Allen White, one of the most renowned editorialists of his day, reached this conclusion Feb. 6: "Because he is adroit and not forthright, he arouses irritating suspicions, probably needlessly, about his ultimate intentions as the leader of his party and the head of government." Still confident that he could win the public's backing despite opinion polls that indicated otherwise, Roosevelt ignored much of the criticism. Image:FDR0216. ... is the 68th day of the year (69th in leap years) in the Gregorian calendar. ... Year 1937 (MCMXXXVII) was a common year starting on Friday (link will display the full calendar) of the Gregorian calendar. ... William Allen White Born in Emporia, Kansas, on February 10, 1868, William Allen White was a nationally known newspaper editor for much of his life. ...

In the March 9 Fireside chat, he acknowledged his true intentions - to create a Supreme Court that could understand these modern conditions - but it had no measurable influence on public opinion. Support began to slip after Senate Judiciary Committee hearings in March, and by June, Roosevelt reluctantly agreed to a compromise that would have allowed him to name just two new justices. But it was too late. On June 14, the committee issued a scathing report that called FDR's plan "a needless, futile and utterly dangerous abandonment of constitutional principle… without precedent or justification." The opposition, led by John Garner, strongly opposed the plan as an abuse of presidential authority because they believed the bill would have given the President indirect control of the Supreme Court by adding justices that favored his New Deal programs. John Nance Cactus Jack Garner (November 22, 1868–November 7, 1967) was a Representative from Texas and the thirty-second Vice President of the United States. ...

The plan was introduced into the United States Senate first because Roosevelt expected stronger opposition in the House of Representatives. The Senate opened debate on the substitute proposal July 2. Roosevelt depended on his Majority Leader Joseph T. Robinson, to get the votes necessary to pass the bill. Contemporary wisdom ran that only Robinson had the clout and I.O.U.s to turn the tide in Roosevelt's favor. But almost on the eve of the roll call, he left the chamber with chest pains. On July 14th, a housemaid found Robinson dead of a heart attack in his apartment, the Congressional Record at his side. With Robinson gone so too were the hopes of passage. Vice President John Nance Garner had the unenviable task of telling Roosevelt, "You haven't got the votes." On July 22, the Senate voted 70-20 to send the judicial-reform measure back to committee, where all the controversial language was stripped from it. The Senate passed the revised legislation a week later, and Roosevelt reluctantly signed it into law Aug. 26. Type Upper House President of the Senate Richard B. Cheney, R since January 20, 2001 President pro tempore Robert C. Byrd, D since January 4, 2007 Members 100 Political groups Democratic Party Republican Party Last elections November 7, 2006 Meeting place Senate Chamber United States Capitol Washington, DC United States... Type Bicameral Speaker of the House of Representatives House Majority Leader Nancy Pelosi, (D) since January 4, 2007 Steny Hoyer, (D) since January 4, 2007 House Minority Leader John Boehner, (R) since January 4, 2007 Members 435 plus 4 Delegates and 1 Resident Commissioner Political groups Democratic Party Republican Party... Joseph Taylor Robinson Joseph Taylor Robinson (26 August 1872 - 14 July 1937) was a Democratic United States Senator, Senate Majority Leader, member of the United States House of Representatives, Governor of Arkansas, and U.S. Vice Presidential candidate. ... John Nance Garner IV (November 22, 1868 – November 7, 1967) was a Representative from Texas and the thirty-second Vice President of the United States (1933-41). ...

Analysis

Traditional analysis

Although President Roosevelt lost the battle in Congress, he won the war to change the judicial philosophy of the Supreme Court. It also cost the heretofore invincible President political capital. Conservative Democrats, now emboldened, could oppose FDR and live to tell about it, turning his "second term into a congressional nightmare." Newsweek January 1, 2007

The idea of an emboldened opposition creating a "congressional nightmare" in FDR's second term is certainly one view. However, given the flood of New Deal legislation that actually became law, it is unclear exactly to what extent FDR's second term can correctly be characterized as a "congressional nightmare". Most Presidents would wish for such nightmares. Accepting the characterization for the purpose of argument, however, it is not clear that the alleged congressional nightmare was a consequence of an opposition emboldened by victory in the court packing vote. In the alternative, the newfound backbone in a previously supine Congress may have come with the grim realization in Congress that the Supreme Court, after the resignation of Justice Willis Van Devanter on June 2, 1937, would no longer be serving as a secure bulwark against New Deal legislation. Therefore, Congress could no longer pass the highly popular New Deal legislation secure in the knowledge that it would eventually fail in the Court. With the obstructionist Court removed as a defense against the New Deal, it became necessary for Congress to take seriously the idea that the legislation it passed might actually become law, as it indeed did. No other prospect, though, better serves to focus the attention of a legislator and show a bit of backbone to the resistance. Willis Van Devanter (April 17, 1859 - February 8, 1941), associate justice of the United States Supreme Court, January 3, 1911 to June 2, 1937. ...

The traditional view of the court-packing has Justice Owen Roberts, a swing vote who had previously voted with the "four horsemen" against the New Deal programs, voting to uphold a Washington state labor law establishing a minimum wage, changing the 5-4 majority to a court not hostile to Roosevelt's agenda. West Coast Hotel Co. v. Parrish, 300 U.S. 379 (1937). This was the switch in time that saved nine. With the retirement of Justice Willis Van Devanter a month later, the Court permanently held in Roosevelt's favor. Recent historical scholarship, such as that by Professor Edward White, suggests that the traditional view is mistaken. It had been thought that Justice Roberts changed his vote in response to Roosevelt's court packing plan because the decision on the Washington labor law was handed down a few days after Roosevelt's announcement. However, the votes in the case had been cast several days before Roosevelt's announcement. Chief Justice Charles Evans Hughes was holding off for the liberal Justice Harlan Stone, who was ill with dysentery, to return to vote. Roosevelt's plan, White concludes, had no effect on the voting of the supreme court justices. Justice Stone returned two days after Roosevelt's fire-side chat and voted the way everyone knew he would - for the minimum wage law. Elections Part of the Politics series Politics Portal This box:      Swing vote is a multi-genre band with Jack, Marc, Ryan and Alex hailing from New Jersey. ... This page is about four conservative Supreme Court justices and four contemporary Washington powerbrokers. ... “The switch in time that saved nine” was the name given by the press to the apparent sudden shift by Justice Owen J. Roberts from the conservative wing of the Supreme Court (represented by the Four Horsemen) to the liberal wing (represented by Three Musketeers) in the case West Coast... See also Edward Douglass White (1845-1921), a former Chief Justice of the United States. ... Charles Evans Hughes (April 11, 1862 – August 27, 1948) was Governor of New York, United States Secretary of State, Associate Justice and Chief Justice of the United States. ... Harlan Fiske Stone (October 11, 1872–April 22, 1946) was the dean of Columbia Law School, Attorney General of the United States, Associate Justice and later Chief Justice of the United States Supreme Court. ...

Whether Professor White's scholarship is correct it still remains that the minimum wage law was held constitutional, but FDR's court packing scheme failed. Or, if it cannot be said from a broader perspective that the court packing scheme "failed", at least it can be said that it was never enacted into law.

In the end, however, Roosevelt was successful in ensuring the constitutionality of his legislative agenda. Through the appointment process, the way in which the Framers intended such conflicts be resolved, Roosevelt nominated and the Senate confirmed five justices in his second term, thereby producing a Court sympathetic to the New Deal.

Joseph L. Rauh, Jr's oral history

Another view of these events can be found in the Supreme Court Historical Society 1990 Yearbook, http://www.supremecourthistory.org/04_library/subs_volumes/04_c12_m.html, link tested 15-Aug-2007, there bearing the following credit: "The entire speech also appeared in Volume 69 North Carolina Law Review (1990) pp. 213-249, under the title 'An Unabashed Liberal Looks at a Half-Century of the Supreme Court," and is reprinted with permission.". These sources present the transcript of a speech by Joseph L. Rauh, Jr., who had been a law clerk for Justice Cardozo at the time. Rauh spoke from an insider's perspective concerning the "court packing" struggle. Benjamin Nathan Cardozo (May 24, 1870–July 9, 1938) is a well-known American jurist, and is remembered not only for his landmark decisions on negligence but also his modesty, philosophy, and writing style, which is considered remarkable for its prose and vividness. ...

Generally, Rauh recognizes and agrees with Professor White that Roberts voted on the minimum wage bill before the "court packing" bill was introduced, and therefore cannot have been influenced in that vote by the "court packing" bill. Rauh does suggest, apparently without any evidence for it, that Roberts may have been influenced in the minimum wage case by the "landslide 1936 election". If, however, Professor White is properly to be read as suggesting that the pressure of the "court packing" proposal either (1) had nothing to do with the subsequent and much more significant NLRB decision [N.L.R.B. v. Jones & Laughlin Steel Corp., 301 U.S. 1 (1937), holding the National Labor Relations Act of 1935 constitutional, argued February 10 & 11, 1937 just days after the "court packing" bill was introduced on February 5, 1937] or (2) had nothing to do with the decision of Van Devanter to retire, then on both points eyewitness Rauh would not appear to agree.

Indeed, although he does not go so far himself, Rauh can be read as implying that the "court packing" proposal was entirely successful even though it went down to legislative defeat, because it provoked the result in the NLRB case notwithstanding recent and contrary authority [Cf. Carter v. Carter Coal Co.298 U.S. 238 (1936) (indeed without even a citation in the case to the prior authority), and that result in turn provoked the resignation of Van Devanter, who recognized after the NLRB cases that, as Rauh put it, "the jig was up". The decision in NLRB case suggested that the prior New Deal cases decided by the four horsemen plus one were henceforth going to be ignored as precedent, removing the Court an as obstacle to FDR's purposes. And the New Deal was born.

By comparison, although the four horsemen thought it worth a vigorous dissent, the WA minimum wage case no more than expressly overruled a 1923 case, Adkins v. Children's Hospital, 261 U.S. 525 (1923), which involved a state minimum wage law (technically, a D.C. law, but the constitutional issues are the same). Since the prior case involved state legislation and not federal New Deal legislation, and since the prior case was more than a decade old, it remained possible after the minimum wage case that the Court would still let the more recently decided four horsemen plus one New Deal cases stand as valid precedent, since the Court generally prefers to let cases stand for a time before reversing or ignoring them.

Therefore, the NLRB case, which dashed those remaining hopes of the four horsemen [see dissent of four horsemen to this and related NLRB cases at 301 U.S. 77 (1937)], and not the minimum wage case, probably warrants the Wikipedia description of the NLRB case: “It effectively spelled the end to pre-New Deal judicial activism in the sphere of economic legislation, and greatly increased Congress's power under the Commerce Clause.” [3]

One wonders whether FDR actually wanted the "court packing" proposal to succeed. The "court packing" proposal, had it become law, may well have undercut the long-term viability of the Supreme Court as a co-equal branch of government. Theoretically, subsequent presidents and congresses could have continued to expand the court with sympathetic justices whenever the Supreme Court nullified their actions; the Supreme Court might have been transformed into a pawn of the executive and legislative branches. The entire proposal may have been an attempt to pressure the Supreme Court, rather than a serious attempt at legislation.^{[citation needed]}

Rauh's suggestion that Van Devanter resigned because "the jig was up" needs to be reconciled with Van Devanter's stated reason for resigning. According to his Wikipedia biography, "Van Devanter resigned as a Supreme Court Justice after Congress voted full pay for justices over seventy who retired." http://en.wikipedia.org/wiki/Willis_Van_Devanter. Rauh obviously suggests that the stated reason was either not true, or at least not the entire story. It would be helpful if research could be done to determine whether Van Devanter was or was not of sufficient means to render salary continuation of little significance to him. If he were of great means, the stated reason is clearly false. If he were not, then the stated reason still may not have been the entire reason, but at least the stated reason would have some credibility on its face.

Open problems

The critical open questions remaining are (1) whether the decision of Roberts and Hughes in the NLRB case to reverse their stance in the Carter Coal case, converting a 6-3 four horsemen plus two majority into a 5-4 all but four horsemen New Deal majority, was because of the political pressure of the court packing proposal, and (2) whether the resignation of Van Devanter a few weeks later was in despair following his conclusion that the reversal of the positions of Roberts and Hughes was for exactly that reason. If so, then the picture of the Court's shift as a natural evolution unaffected by the President's court packing proposal is simply inaccurate, and the traditional view substantively prevails.

This remains true even if one rather generously grants that modern scholarship may arguably have brought new information to the attention of the historical record when noting the details (1) that the shift of Roberts in the WA minimum wage case clearly occurred before the President's court packing proposal, albeit after the President's landslide re-election, or (2) that the decision on the minimum wage bill was kept open until Justice Stone could recover his health and cast his vote as a member of the resulting 5-4 majority in favor of the minimum wage. These details simply do not address the critical open questions one way or the other. Further, Rauh's speech suggests that the timing of Robert's vote on the minimum wage case has in any event been known more or less from the beginning, and the illness of Justice Stone likewise cannot have been unknown at the time or since.

By 1941, following the deaths of Justices Cardozo (1938) & Butler (1939), and the resignations of McReynolds (1941), Van Devanter (1937), Sutherland (1938), Brandeis (1939), & Hughes (1941), only two Justices (former Associate Justice, by then promoted to Chief Justice, Stone, and Associate Justice Roberts) remained from the Court Roosevelt inherited in 1933.

External links

• FDR's Fireside Chat on the bill

• 1990 Eyewitness Account of Law Clerk Joseph L. Rauh, Jr. (Link live as of 11-Nov-2007)