Judicial Procedures Reform Bill of 1937

Based on Wikipedia: Judicial Procedures Reform Bill of 1937

The President Who Tried to Break the Supreme Court

In February 1937, Franklin Delano Roosevelt—fresh off one of the most crushing electoral victories in American history—announced a plan that shocked even his closest allies. He wanted to pack the Supreme Court with new justices who would stop blocking his agenda.

The scheme was elegant in its deviousness. For every Supreme Court justice over the age of seventy who refused to retire, Roosevelt would appoint an additional justice. Since six of the nine sitting justices were over seventy, this could have expanded the Court from nine to fifteen members—all chosen by Roosevelt himself.

It failed spectacularly. And yet, in failing, it may have succeeded.

The Setup: A President at War with His Own Government

To understand what drove Roosevelt to such an audacious gambit, you need to understand the constitutional crisis he faced. The Great Depression had demolished the American economy. Unemployment reached twenty-five percent. Banks collapsed by the thousands. Breadlines snaked through city streets.

Roosevelt swept into office in 1932 promising a "New Deal"—an unprecedented expansion of federal power to combat the economic catastrophe. Congress, terrified and desperate, gave him nearly everything he asked for. New agencies sprouted across Washington. New regulations governed banking, agriculture, industry. The federal government inserted itself into corners of American life it had never touched before.

But the Supreme Court stood in the way.

The Constitution, as interpreted by the Court's conservative majority, simply didn't permit what Roosevelt was trying to do. The federal government couldn't regulate local economic activity. It couldn't dictate wages or working conditions. It couldn't tell farmers what to grow or manufacturers how to operate.

One by one, the Court struck down Roosevelt's signature programs. The National Industrial Recovery Act—gone. The Agricultural Adjustment Act—unconstitutional. Railroad pension regulations—invalid.

May 27, 1935, became known as "Black Monday." That day, the Supreme Court handed down three unanimous decisions against the administration. The centerpiece was the demolition of the National Recovery Administration, the cornerstone of Roosevelt's industrial policy.

The president was furious. "We have been relegated to the horse-and-buggy definition of interstate commerce," he complained.

The Four Horsemen and the Three Musketeers

The Supreme Court of the 1930s makes for a fascinating study in judicial personality. Contemporary observers divided the justices into opposing camps with vivid nicknames.

The conservative bloc earned the moniker "The Four Horsemen," after the biblical harbingers of apocalypse. Justices Pierce Butler, James Clark McReynolds, George Sutherland, and Willis Van Devanter consistently voted to strike down economic regulations as unconstitutional. They believed in strict limits on federal power, sacred property rights, and the freedom of individuals to contract without government interference.

Opposing them were "The Three Musketeers"—Louis Brandeis, Benjamin Cardozo, and Harlan Fiske Stone. These liberal justices favored judicial restraint in economic matters, arguing that courts should defer to elected legislatures on questions of economic policy.

That left Chief Justice Charles Evans Hughes and Justice Owen Roberts as the swing votes. Most cases came down to which side could persuade these two men.

Modern scholars sometimes resist these labels, noting that the justices didn't think of themselves as legislators voting their policy preferences. They were engaged in genuine legal interpretation. But the justices' private correspondence reveals they absolutely saw themselves as ideological warriors. In 1929, Chief Justice William Howard Taft wrote to Justice Butler expressing his fervent hope that enough of the conservative justices would survive to "prevent disastrous reversals of our present attitude."

Two Visions of the Constitution

The fight over the New Deal wasn't just politics. It was a clash between fundamentally different ideas about what the Constitution means and how judges should interpret it.

One school of thought, called legal formalism, held that the Constitution established fixed, timeless principles. Judges didn't make law; they discovered it. Their job was to identify the applicable constitutional rules and apply them to the facts. The Constitution meant what it said and said what it meant. If Congress wanted to do something the Constitution didn't authorize, the remedy was to amend the Constitution—not to have judges pretend it said something different.

The opposing view, legal realism, argued that the Constitution should be interpreted flexibly to meet changing circumstances. Justice Oliver Wendell Holmes Junior, one of the most famous proponents of what became known as the "Living Constitution," wrote that legal cases "must be considered in the light of our whole experience and not merely in that of what was said a hundred years ago."

This wasn't an abstract academic debate. It determined whether Roosevelt could respond to the worst economic crisis in American history.

The formalists on the Court believed in certain foundational principles: a sharp distinction between federal and state powers, a clear line between public matters that government could regulate and private economic activity that it couldn't, and robust protection for property rights and contractual freedom. Much of the New Deal crashed directly into these principles.

The realists countered that the Constitution's framers couldn't have anticipated industrial capitalism, nationwide commerce, or economic depressions that swept across state lines. The document had to evolve.

The Government's Own Lawyers Fumbled the Ball

Roosevelt's legal troubles weren't entirely the Supreme Court's fault. His own Justice Department made things worse.

The flood of New Deal legislation swamped the department with more work than it could handle. Many of its lawyers were ideologically opposed to what Roosevelt was trying to do and dragged their feet on reviewing and defending the new laws. Turf wars and political patronage appointments compounded the dysfunction.

The Solicitor General, James Crawford Biggs, proved particularly ineffective at arguing the government's cases before the Supreme Court. His successor, Stanley Forman Reed, wasn't much better.

As Chief Justice Hughes later observed, much of the New Deal legislation was "so poorly drafted and defended" that the Court couldn't uphold it even if inclined to try. The government's lawyers repeatedly failed to develop strong test cases or construct compelling legal arguments.

There's a cruel irony here. Roosevelt's administration was so eager to pass sweeping legislation that it neglected the legal craftsmanship necessary to make that legislation stick.

An Unforced Error That Made Things Worse

One of Roosevelt's earliest actions may have inadvertently hardened judicial opposition to his agenda.

Shortly after taking office, Congress passed the Economy Act, which cut government salaries across the board—including the pensions of retired Supreme Court justices. Justice Oliver Wendell Holmes Junior, who had retired in 1932, saw his pension slashed from twenty thousand dollars to ten thousand dollars per year.

This seemingly minor budget measure had an unexpected consequence. At least two elderly conservative justices, Willis Van Devanter and George Sutherland, had been considering retirement. The pension cuts apparently dissuaded them from stepping down. Both would go on to vote against New Deal legislation for years.

Roosevelt's cost-cutting measure may have extended the very judicial opposition he was trying to overcome.

The Landslide and the Gambit

In November 1936, Roosevelt crushed his Republican opponent Alf Landon, winning forty-six of forty-eight states. Democrats controlled both houses of Congress by overwhelming margins. It was one of the most lopsided electoral victories in American history.

Roosevelt interpreted this as a mandate. The American people had endorsed the New Deal. The only obstacle remaining was a handful of elderly judges who refused to accept the popular will.

On February 5, 1937, Roosevelt unveiled his plan. He framed it as judicial reform, arguing that the federal courts were overworked and that aging judges couldn't keep up with their caseloads. The solution: allow the president to appoint additional judges when current judges reached seventy and failed to retire.

Nobody was fooled. Roosevelt wanted to add enough friendly justices to outvote the conservatives blocking his programs.

A month later, Roosevelt made his case directly to the American people in one of his famous "fireside chat" radio addresses. He complained that the Supreme Court was so overwhelmed it declined to hear eighty-seven percent of the cases brought before it.

Chief Justice Hughes publicly contradicted him. "There is no congestion of cases on our calendar," Hughes announced. The Court was completely current with its workload. Roosevelt's justification was simply false.

The Switch in Time That Saved Nine

Three weeks after Roosevelt's radio address, something remarkable happened.

The Supreme Court issued its ruling in West Coast Hotel Company versus Parrish, upholding Washington State's minimum wage law for women. The vote was five to four. Justice Owen Roberts, who had previously voted against similar regulations, switched sides.

The decision electrified observers. Roberts appeared to have abandoned his conservative allies in response to political pressure. If Roosevelt's threat to pack the Court could produce this result, maybe the threat alone was enough.

Journalists coined a phrase that became one of the most famous quips in American legal history: "the switch in time that saved nine." Roberts had supposedly changed his vote to save the Court from Roosevelt's expansion plan.

The narrative was irresistible. But it may not be true.

Recent legal scholarship has established that Roberts cast his vote in the Parrish case before Roosevelt even announced his court-packing plan. The justices had voted in December 1936. The decision wasn't announced until March 1937 due to the ordinary delays of opinion-writing.

Roberts may have been evolving in his jurisprudence independent of political pressure. Or perhaps he was responding to the November election results rather than the February announcement. The exact causation remains disputed.

What's undeniable is the perception. Whether or not Roosevelt's threat actually changed Roberts's mind, everyone believed it had. The Court's legitimacy took a hit regardless.

The Plan's Spectacular Collapse

Despite Roosevelt's popularity and Democratic dominance of Congress, the court-packing plan imploded.

The opposition was immediate and bipartisan. Many viewed the scheme as an attack on judicial independence, an attempt to subordinate the courts to the president's will. Even Roosevelt's own vice president, John Nance Garner, opposed it.

Henry F. Ashurst, the Democratic chairman of the Senate Judiciary Committee, employed a devastatingly simple strategy: delay. "No haste, no hurry, no waste, no worry—that is the motto of this committee," he declared. He held the bill in committee for 165 days, refusing to schedule hearings while opposition mobilized.

Then disaster struck Roosevelt's forces. Senate Majority Leader Joseph T. Robinson, the bill's chief advocate, died suddenly. Robinson had been promised the first seat on the expanded Court as a reward for shepherding the legislation through. His death demoralized supporters and left the bill leaderless.

The Senate Judiciary Committee ultimately released a scathing report condemning the proposal as "a needless, futile and utterly dangerous abandonment of constitutional principle... without precedent or justification." These were Democrats savaging their own president.

The bill died without ever reaching a vote.

Victory in Defeat?

Roosevelt lost the battle but arguably won the war.

Even as Congress killed his court-packing plan, the Supreme Court began upholding New Deal legislation. On March 29, 1937, the Court reversed its previous hostility to minimum wage laws. It upheld the Railroad Labor Act. It sustained a revised farm mortgage moratorium. Most significantly, it validated the Wagner Labor Relations Act, which guaranteed workers' rights to organize and bargain collectively.

Justice Van Devanter announced his retirement in May 1937, giving Roosevelt his first Supreme Court appointment. Over the next few years, the conservative justices departed one by one. By 1941, Roosevelt had appointed seven of the nine justices.

The constitutional revolution Roosevelt sought happened—just not through the mechanism he proposed. The Court abandoned its hostility to economic regulation. The distinction between federal and state powers blurred. The government's authority to manage the economy expanded dramatically and permanently.

Some scholars describe Roosevelt's victory as pyrrhic. The court-packing fight damaged his political standing and exposed the limits of his power. His previously reliable congressional coalition fractured. A conservative coalition of Republicans and Southern Democrats emerged that would block liberal legislation for a generation.

Roosevelt's legislative productivity never recovered. After dominating his first term, passing sweeping reforms through a compliant Congress, he spent his remaining years fighting for incremental gains against stiffening opposition.

The Precedent That Wasn't Set—And Why It Matters

The Constitution says nothing about how many justices should sit on the Supreme Court. Congress has changed the number multiple times throughout American history. It started at six, grew to ten during the Civil War, and settled at nine in 1869.

Roosevelt was legally correct that Congress could change the Court's size again. Nothing in the Constitution prevented it.

But the fierce backlash to his proposal established something almost as powerful as constitutional text: a norm. Court-packing became synonymous with an illegitimate power grab. Any subsequent president contemplating a similar move would face the ghost of Roosevelt's failure.

This matters because much of the American constitutional system depends on norms rather than formal rules. The Constitution doesn't require the Senate to vote on presidential nominees—it can simply refuse to hold hearings, as it did with Merrick Garland in 2016. The Constitution doesn't prevent a president from issuing blanket pardons to political allies. The Constitution doesn't stop a party from gerrymandering districts into absurd shapes.

Norms fill the gaps that formal rules leave open. Roosevelt's court-packing failure strengthened the norm of judicial independence, making the nine-justice Court feel like constitutional bedrock rather than a historical accident.

The Larger Lesson

The 1937 court-packing crisis illustrates a fundamental tension in American government: between democratic majorities and constitutional limits.

Roosevelt won the largest electoral mandate in modern history. The American people had endorsed his program overwhelmingly. And yet a handful of unelected judges could tell him no.

That's the point of constitutional government. Majorities don't always get their way. Certain rights and structures exist beyond the reach of ordinary politics. Judges interpret those limits.

But who guards the guardians? If judges can override democratic decisions, what prevents them from imposing their own policy preferences under the guise of constitutional interpretation? Roosevelt's conservative critics accused him of trying to subvert the Constitution. Roosevelt accused the conservative justices of exactly the same thing.

Both had a point. The Constitution doesn't interpret itself. Someone has to decide what "interstate commerce" means, what "due process" requires, what "equal protection" demands. Those decisions inevitably involve judgment calls that reflect the decision-maker's values.

Roosevelt's court-packing plan was defeated. But the constitutional revolution he sought occurred anyway, as the Court adopted a far more permissive view of federal power. The same Constitution that the Four Horsemen found incompatible with minimum wage laws, their successors found perfectly consistent with far more aggressive regulation.

The words on the page didn't change. The people reading them did.

Echoes in the Present

The court-packing debate has never fully subsided. Whenever the Supreme Court issues controversial decisions, voices emerge calling for expanding the Court or limiting its jurisdiction. The underlying tension Roosevelt confronted—between judicial review and democratic accountability—remains unresolved.

Arguments for court expansion note that the current nine-justice size is merely historical convention, that other democracies have larger constitutional courts, and that lifetime appointments allow justices to entrench ideological positions for decades beyond the elections that shaped them.

Arguments against note that court-packing would invite retaliation, with each party expanding the Court when it gains power, destroying any pretense of judicial independence. Better to accept occasional unfavorable rulings than to politicize the courts entirely.

Roosevelt's failure established that Americans, even when frustrated with the Court, prefer to work within existing structures rather than transform them. Whether that preference will hold in an era of increasing polarization remains an open question.

The Constitution still doesn't specify how many justices should sit on the Supreme Court. The number nine has no magical significance. But thanks to Franklin Roosevelt's overreach in 1937, it feels as permanent as any amendment.