The political agenda that Franklin D. Roosevelt brought to his first administration ran into great hostility from the Supreme COurt, which overturned a number of New Deal programs in the first few years. Roosevelt was enraged and threatened to change the number of justices, which is not set by the Constitution, to allow him to appoint new justices with views favorable to his own. Public opposition to this attempt to assert control over the judicial branch by the executive branch forced him to back down, but the court itself began to take a more generous view of the New Deal. As justices were replaced by Roosevelt appointees, the issue was gradually defused.
In the summer of 1936, a number of decisions handed down by the Supreme Court invalidated the provisions of several key elements of the New Deal. The actions bothered Roosevelt a great deal. The landslide victory that he enjoyed in the election of 1936 emboldened him.
On February 5, 1937, Roosevelt sent to Congress a bill for the reform of the federal judiciary, which among other things would have allowed him to appoint up to six additional justices to the Supreme Court, raising its total to fifteen. He explained his plan first in a message to Congress and then in his Fireside Chat of March 9, 1937.
During his radio address, Roosevelt took pains when drawing the line between the policies advocated by himself and opposed by the Supreme Court to place the American people on his side of it, remarking that "In 1933 you and I knew ..." and "Today we are only part way through that program." He explained the his plan was to ensure that the court would have new blood, people who would see the modern circumstances of American life, by providing a new justice for each justice who remained on the court after the age of seventy and having served ten years.
Roosevelt accused the court of having overstepped its bounds and switched from exercising proper judicial review to becoming a "third house of Congress." He denied that the justices were compelled to overturn his legislation by noting that some justices had dissented.
The project had been described as "packing" the court, and Roosevelt demurred, somewhat:
If by that phrase "packing the Court" it is charged that I wish to place on the bench spineless puppets who would disregard the law and would decide specific cases as I wished them to be decided, I make this answer: that no president fit for his office would appoint, and no Senate of honorable men fit for their office would confirm, that kind of appointees to the Supreme Court.
But if by that phrase the charge is made that I would appoint and the Senate would confirm justices worthy to sit beside present members of the Court, who understand modern conditions, that I will appoint justices who will not undertake to override the judgment of the Congress on legislative policy, that I will appoint justices who will act as justices and not as legislators - if the appointment of such justices can be called "packing the Courts," then I say that I and with me the vast majority of the American people favor doing just that thing - now.
His proposal was considered by a Senate committee, which reported adversely on June 14. The report was unsparing in its criticism of Roosevelt`s motives. It suggested that Roosevelt had constructed a smokescreen around his real objectives:
It should be pointed out here that a substantial portion of the message was devoted to a discussion of the evils of conflicting decisions by inferior courts on constitutional questions and to the alleged abuse of the power of injunction by some of the Federal courts. These matters, however, have no bearing on the bill before us, for it contains neither a line nor a sentence dealing with either of those problems.
It also noted that the purported interest in creating a larger and more efficient court were contradicted by statements from the administration:
Three invitations to the members of the Supreme Court over 70 years of age to get out despite all the talk about increasing personnel to expedite the disposition of cases and remedy the law`s delay. One by the bill. One by the President`s message. One by the Attorney General. Can reasonable men by any possibility differ about the constitutional impropriety of such a course?
It finished with a scathing critique:
Its ultimate operation would be to make this Government one of men rather than one of law, and its practical operation would be to make the Constitution what the executive or legislative branches of the Government choose to say it is-an interpretation to be changed with each change of administration.
The strength of the opposition to his plan may have surprised Roosevelt, who adopted a more moderate tone in response. While some continued to advocate for judicial reform, Roosevelt largely left the problem alone. It became moot when the Supreme Court began to view the constitutionality of his programs more favorably.
In retrospect, it`s not hard to understand why the plan failed to gather support. The American people, and especially its Congress, hold the separation of the three branches in high regard. While Roosevelt in his message noted the need for younger people in both the judicial and executive branches, and the Senate noted that his plan did nothing to improve youthfulness in the executive, the unmentioned fact was that national legislators can themselves grow old and out of touch. The challenge to the Supreme Court in 1937 could have become a challenge to Congress later.
Much as Congress supported Roosevelt at the time, it supported its future independence and relevance even more.
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