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fire-side chat

Judiciary Reorganization Bill of 1937

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. Six additional justices would have been appointed. 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.

Background

In the early years of the Great Depression, President Roosevelt found several of his New Deal legislative packages were running afoul of the Supreme Court, which was still in the waning years of its Lochner era and its adherence to the doctrine of "freedom of contract." Programs such as the Agricultural Adjustment Act and the National Recovery Administration were held unconstitutional in United States v. Butler (1936) and Schechter Poultry Corp. v. United States (1935), respectively. Reacting to such rulings, Roosevelt decried the conservative justices for "reading into the Constitution words and implications which are not there, and which were never intended to be there." Roosevelt came to view the Court's actions as an overextension of judicial authority frustrating the political and economic forces needed to combat the Great Depression.

Roosevelt's first term passed without opportunity to appoint to the Court any justices friendlier toward his programs. Although "inclined to wait until a vacancy naturally occurred on the Court," Roosevelt's frustration mounted. Emboldened by the landslide Democratic victory in the 1936 election, Roosevelt sought an alternative to waiting for a vacancy on the court in order to thwart the Court's ability to block the legislative agenda of his second term.

Roosevelt found his alternative in an untraditional idea: changing the size of the court in order to shift the balance of power within it. Article III of the United States Constitution is silent as to how many justices may sit on the Court at any instance. 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.

Although the Hughes Court had seven justices over the age of 70 and six months, no vacancy loomed in the foreseeable future. Therefore in his first "fireside chat" of his second term, Roosevelt 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." While the size of the court has been changed several times during the course of U.S. history, Roosevelt's basis for changing the court was a first. The table below lists those changes and the historical reasons for them:

Year Size Enacting Legislation Comments
1789 6 Judiciary Act of 1789 Original court consists of Chief Justice & five associate justices; two justices for each of the three circuit courts. ()
1801 5 Judiciary Act of 1801 Lameduck Federalists, in the waning weeks of President John Adams's administration, greatly expand federal courts and reduce the number of associate justices¹ to four in a transparent effort to hinder appointments by incoming President Thomas Jefferson. ()
1802 6 Judiciary Repeal of 1802 Judiciary Act of 1801 repealed by Democratic-Republicans; no seat on the court actually abolished. ()
1807 7 Seventh Circuit Act Created a new circuit court for OH, KY, & TN; Jefferson appoints the new associate justice. ()
1837 9 Eighth & Ninth Circuits Act Signed by President Andrew Jackson on his last full day in office; Jackson nominates two associate justices, both confirmed; one declines appointment. New President Martin Van Buren then appoints the second. ()
1863 10 Tenth Circuit Act Created Tenth Circuit to serve CA and OR; added associate justice to serve it. ()
1866 7 Judicial Circuits Act Chief Justice Salmon P. Chase lobbied for this reduction.¹ The Radical Republican Congress took the occasion to overhaul the courts to reduce the influence of former Confederate States. ()
1869 9 Judiciary Act of 1869 Set Court at current size, reduced burden of riding circuit by introducing intermediary circuit court justices. ()
Notes
1. Reductions in court size are accomplished only through attrition—i.e., a seat is abolished only when it becomes vacant. As such, the actual size of the court during a contraction may remain larger than the law provides until well after that law's enactment.

Time Line

1935 Jan 7: Panama Refining Co. v. Ryan, 293 U.S. 388 (1935) Held, 8-1: National Industrial Recovery Act Sect. 9(c) unconstitutional

1935 May 6: Railroad Retirement Bd. v. Alton R. Co., 295 U.S. 330 (1935) Held, 5-4: Railroad Retirement Act unconstitutional

1935 May 27: Schechter Poultry Corp. v. United States, 295 U.S. 495 (1935) Held, 9-0: National Industrial Recovery Act unconstitutional

1935 May 27: Humphrey's Executor v. U.S., 295 U.S. 602 (1935) Held, 9-0: President may not remove FTC commissioner without cause.

1936 Jan 6: United States v. Butler, 297 U.S. 1 (1936) Held, 9-0: Agricultural Adjustment Act unconstitutional

1936 May 18: Carter v. Carter Coal Company, 298 U.S. 238 (1936) Held, 6-3: Bituminous Coal Conservation Act of 1935 unconstitutional

1936 Nov 3: Roosevelt electoral landslide ("As Maine goes, so goes Vermont" - James Farley)

1936 Dec 16: West Coast Hotel Co. v. Parrish argued

1937 Feb 5: Conference vote on West Coast Hotel

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

1937 Feb 10: NLRB v. Jones & Laughlin Steel Corp. argued

1937 Mar 9: "fireside chat" regarding national reaction to JRB37

1937 Mar 29: West Coast Hotel Co. v. Parrish, 300 U.S. 379 (1937) Held, 5-4: State of WA minimum wage law constitutional

1937 Apr 12: NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1 (1937) Held, 5-4: NLRA constitutional

1937 May 24: Steward Machine Company v. Davis, 301 U.S. 548 (1937) Held, 5-4: Social Security tax constitutional

1937 Jun 2: "Horseman" Willis Van Devanter resigns, Sen. Hugo Black appointed

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

1937 Jul 22: JRB37 referred back to committee by a vote of 70-20 to strip "court packing" provisions.

1938 Jan 18: "Horseman" George Sutherland resigns, Stanley Forman Reed appointed

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 Democrat-controlled Senate 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. The six cases representing the posture of the anti-New Deal majority were decided by votes of 9-0, 9-0, 9-0, 8-1, 6-3, and 5-4 (see Time Line above). Presumably for this reason, Roosevelt proposed six new justices, and not merely two.

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.

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.

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 the controversial language was stripped. The Senate passed the revised legislation a week later, and Roosevelt signed it into law Aug. 26.

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 cost dearly the heretofore invincible and beloved President precious political capital. Conservative Democrats, now emboldened, could oppose FDR and live to tell the tale, rendering his second term "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 serve 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 add a bit of backbone to the resistance.

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. This view overlooks, however, the actual voting majorities in the cases finding New Deal legislation unconstitutional, with majorities of 9-0 on at least two occasions. With the retirement of Justice Willis Van Devanter a month later, the Court permanently held in Roosevelt's favor.

Traditional View Challenged

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 of the suspiciously serendipitous timing of the favourable ruling on the Washington labor matter law at bar, handed down a within days of 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 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 in the Washington minimum wage case. Justice Stone returned two days after Roosevelt's fire-side chat and voted the way everyone knew he would - for the minimum wage law.

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 that it never became 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 appears in the Supreme Court Historical Society 1990 Yearbook, , 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 about the "court-packing" struggle.

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 the NLRB case suggested that the prior cases finding New Deal acts unconstitutional, by majorities up to 9-0, were henceforth going to be ignored as precedent, removing the Court as an 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 stand as valid precedent for a time the more recently decided cases finding aspects of the new Deal unconstitutional by various majorities up to 9-0, since the Court generally prefers to let cases stand for a time before reversing or ignoring them.

Thus, the NLRB case, which dashed those last hopes of the four horsemen [see their dissent to the 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.”

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.

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." 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.

Notes

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