COURT PACKING: BACKGROUND
The New Deal agenda was an unprecedented effort to battle the Great Depression. In the dire time of the devastating economic crisis, Franklin Delano Roosevelt could rely on the support of Congress. In the first 100 days of his presidency, he was able to get Congress' approval on nearly everything he and his advisers planned and after that, new legislation introducing sweeping reforms and relief programs also usually passed through Congress, even if after long debates (after both the 1932 and 1936 elections, Democrats controlled Congress). The one obstacle to turning the legislation into action turned out to be the Supreme Court. Flagship First New Deal programs like the Agricultural Adjustment Act and the National Industrial Recovery Act as well as a number of smaller, less expansive legislative proposals were deemed either entirely or partially unconstitutional. With four conservative, two centrist, and three liberal judges on the Supreme Court, Roosevelt recognized that his collaboration with the judicial branch would not be as successful as with the legislative branch. The landslide victory in the 1936 election emboldened the President to propose a plan that would change the political balance in the Supreme Court by adding new judges of his choice and thus increasing the number of Supreme Court justices. Political opponents referred to Roosevelt's proposal as "the court-packing plan."
THE JUSTICE DEPARTMENT DURING THE NEW DEAL
The Justice Department was not prepared to deal with the New Deal legislation not only because of its sheer amount but also because of intensified demands that the Great Depression produced for its employees (e.g., higher crime rates). Additionally, many Justice Department lawyers failed to influence either the drafting or review of much of the White House's New Deal legislation and had doubts about quickly and poorly drafted New Deal proposals. Furthermore, Roosevelt's Solicitor General, James Crawford Biggs, proved to be an ineffective advocate for the legislative initiatives of the New Deal. Biggs resigned in early 1935 and while his successor Stanley Forman Reed initially faced serious challenges, by 1937 his repeated legal victories earned him the reputation of one of the most effective Solicitors General.
This disarray at the Justice Department meant that the government's lawyers often failed to foster viable test cases and arguments for their defense, subsequently handicapping them before the courts. As Chief Justice Charles Evans Hughes would later note that the court did not uphold much of the New Deal legislation because it was was so poorly drafted and defended.
JUDICIAL PROCEDURES REFORM BILL OF 1937
In February 1937, Roosevelt introduced the Judicial Procedures Reform Bill, frequently called the "court-packing plan." This legislative initiative proposed to add up to six more justices to the U.S. Supreme Court: for each judge over the age of 70 and six months who served more than 10 years, the president would appoint a new judge (six out of nine judges at the time met both criteria). The controversial plan did not violate the Constitution that does not specify the number of Supreme Court justices. However, political opposition to the Bill emerged immediately, not only among anti-New Deal conservatives. Even Roosevelt's own vice president was critical of the idea. Hardly any politician believed that the President was driven by motives other than being able to appoint pro-New Deal judges, who would make the execution of his agenda possible.
A month after the introduction of the proposal, Roosevelt made it the subject of his "fireside chat." He decried the Supreme Court's majority for "reading into the Constitution words and implications which are not there, and which were never intended to be there." He also argued directly that the Bill was needed to overcome the Supreme Court's opposition to the New Deal, stating that the nation had reached a point where it "must take action to save the Constitution from the Court, and the Court from itself." Initially, popular support for the initiative was high, mostly because of the President's immense popularity. However, even Roosevelt's proponents gradually changed their minds. By the end of the crisis, the American public remained divided over the validity of the proposal.
Homer Stille Cummings, Solicitor General of the United States, 1920, Harris & Ewing
Solicitor General Homer Stillé Cummings. His failure to prevent poorly-drafted New Deal legislation from reaching Congress is considered his greatest shortcoming.
CONSEQUENCES OF THE COURT-PACKING PLAN
Facing the strong political opposition and decreasing popular support, the Judicial Procedures Reform Bill wad doomed to failure. While Burton Wheeler, a progressive Democrat from Montana, played the role of the public voice of the alliance that formed in opposition to "the court-packing plan," conservative Democratic senators, Carter Glass, Harry Flood Byrd, and Josiah Bailey, were critical to collecting enough opposing votes in Congress. Roosevelt realized that the Bill had no chance of being passed and a compromise that did not alter the existing balance in the Court was negotiated. The controversy, which historians consider to be one of the most questionable moments in Roosevelt's career, strengthened conservative opposition to the New Deal. By 1937, an informal yet strong group of congressmen and representatives opposing the New Deal formed in Congress. Known as the Conservative Coalition (at the time, the term "conservative" referred to the opponents of the New Deal and did not imply any specific party affiliation), it initiated a conservative alliance that, with modifications, shaped Congress until the 1960s.
Despite the failure of Roosevelt's plan, "the court-packing plan" controversy coincided with and was followed by changes that helped the President gain much more control over the Supreme Court. In 1937, the Court upheld the constitutionality of the National Labor Relations Act by changing its earlier interpretation of to what extent Congress could interfere in interstate commerce. The same year, it also upheld the constitutionality of Washington state's minimum wage law in West Coast Hotel Co. v. Parrish, a decision reached after Republican justice Owen Josephus Roberts unexpectedly supported the legislation. Historians argue that these changes of opinions were greatly influenced by the ongoing crisis. Also in 1937, Willis Van Devanter, justice nominated by Republican Theodore Roosevelt, retired and by the same token FDR could nominate his first Supreme Court justice. By the end of his presidency, Roosevelt nominated eight Supreme Court justices, more than any other president.
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Justice Stanley Forman Reed, 1936, Harris & Ewing, Inc., Library of Congress Prints and Photographs Division, Harris & Ewing Collection
Stanley Forman Reed was considered to be a very effective Solicitor General. In 1938, he became the first Supreme Court justice nominated by FDR.