COURT-PACKING PLANS

"Court packing" is an ambiguous phrase. It arises more frequently as an epithet in political disputation than as an analytical term in scholarly discourse. "Packing" connotes a deliberate effort by an executive, especially a President, to appoint one or more (usually more) judges to assure that decisions will accord with the ideological predisposition of that executive. Webster's New International Dictionary defines "pack" as "to … make up unfairly or fraudulently, to secure a certain result." Yet not everyone agrees on what is unfair, and it is not at all extraordinary for Presidents to take pains to ascertain that a prospective nominee is likely to behave in ways that will not be out of harmony with the ends of their administrations.

Furthermore, the word "packing" has been employed with respect to two different situations—when a President is filling vacancies that have arisen in the natural course of events, and when a President seeks legislation to increase the membership of courts to create additional opportunities for appointments that may shape the outcome of pending and future litigation.

Although political antagonists have taken advantage of the elasticity of the word to raise the charge of Court packing through much of our history, scholars have largely concentrated their attention on three particular episodes. The first of these events took place on the night of March 3, 1801, when in his final hours in office, President john adams sat up very late signing commissions of sixteen appointees to circuit judgeships and forty-two justices of the peace for the District of Columbia, including one William Marbury. All these offices had been created in the last three weeks of his term by an obliging Federalist Congress, and Adams, outraged by the victory of the Democratic Republicans in 1800 and fearful of its consequences for the nation, busied himself filling the posts with faithful partisans to serve as a restraint on his successor, thomas jefferson. This melodrama of the "midnight judges" would subsequently lead to the landmark case of marbury v. madison (1803).

Historians long thought they had detected another instance of Court packing during reconstruction. In 1870, at a time when the membership of the Court had been reduced, the Supreme Court, in Hepburn v. Griswold, struck down the Legal Tender Act of 1862 as applied to debts incurred before its enactment. The 4–3 vote strictly followed party lines. A year later, in Knox v. Lee and Parker v. Davis, the decision was reversed when the three dissenters in the earlier ruling were joined by two new appointees, both Republicans, of President ulysses s. grant. Their appointments followed the action of Congress restoring the Court to nine Justices. This sequence gave credibility to the allegation that the Court had been packed in order to save the Republican administration's monetary policy. In fact, however, scholars now agree that neither the augmentation of the size of the bench nor these appointments resulted from partisan or ideological motivations.

By far the most important Court-packing plan in American history emerged out of a conflict between the Supreme Court and the administration of franklin d. roosevelt in the Great Depression. In 1935 and 1936, the Court again and again struck down new deal laws, including those creating the two foundation stones of Roosevelt's recovery program, the national industrial recovery act and the agricultural adjustment act of 1935 (AAA). Most of these rulings came on split decisions, with owen j. roberts joining the conservative "Four Horsemen"—pierce butler, james c. mcreynolds, george sutherland, and willis van devanter—to form a five-man majority, sometimes augmented by the Chief Justice, charles evans hughes.

The Roosevelt administration responded by exploring a number of possibilities for curbing the powers of the Supreme Court. As early as May 1935, Attorney General homer s. cummings directed one of his aides to look into how the Court's authority to pass on constitutional questions could be limited. Rumors had circulated from the beginning of the New Deal era that Court packing might someday be attempted, and at a cabinet meeting at the end of 1935, the President mentioned packing the Court as the first of a series of options. A cabinet official noted in his diary, however, that Roosevelt characterized it as "a distasteful idea." Still, Roosevelt more than once alluded to the episode in Great Britain earlier in the century when the threat of creating several hundred new peers had compelled the House of Lords to approve reform legislation.

Initially, critics of the judiciary assumed that redress could be achieved only by amending the Constitution, but the behavior of the Court in 1936 turned the thinking of the administration in new directions. When Justice harlan f. stone, in a biting dissent in butler v. united states (1936), accused the majority in the 6–3 ruling invalidating the AAA processing tax of a "tortured construction of the Constitution," he fostered the idea that Congress need not alter the Constitution because properly interpreted it could accommodate most of the New Deal. Instead, Congress should concern itself with the composition of the Court.

The replacement of even one Justice could shift 5–4 decisions toward approval of FDR's policies without any modification of the Constitution. Yet, although this Court was the oldest ever, not a single vacancy developed in all of Roosevelt's first term. Increasingly, the administration looked for a solution that would eschew the tortuous process of constitutional amendment and instead, by the much simpler procedure of an act of Congress, overcome obstruction by elderly judges.

Shortly after winning reelection in November 1936, Roosevelt told Cummings that the time to act had come. Not only had the Court struck down fundamental New Deal laws in his first term, but in addition, it was expected to invalidate innovative legislation such as the National Labor Relations Act and the social security act when it ruled on these statutes early in his second term. Moreover, although he had won an overwhelming endorsement from the people in a contest in which he had carried all but two of the states, he was constrained from taking advantage of this mandate because if he tried to put through measures such as a wages and hours law the Court was likely to wipe out those laws too. He saw little prospect that the Court might change its attitude; in the very last decision of the term, morehead v. new york ex rel. tipaldo (1936), it had shocked the nation by striking down a New York State minimum wage law for women, thereby indicating that it did not merely oppose concentrated power in Washington, but was in the President's words, creating a "no-man's land' where no Government—State or Federal—can function." Under these circumstances, FDR was determined not to be like President james buchanan, who sat passively while his world collapsed about him.

During the month of December, Cummings put together the specific proposal that Roosevelt embraced. Cummings was influenced by the political scientist edward s. corwin, who suggested linking an age limit of seventy years for Justices to the appointment of additional members of the bench, but he did not find the precise formula until he came upon a 1913 memorandum by James C. McReynolds, then attorney general, recommending that when a judge of the lower federal courts did not retire at seventy the President be required to appoint an additional judge. Cummings seized McReynolds's idea and applied it to the Supreme Court as well. He also worked out a rationale for the scheme by incorporating it in a package of proposals for relieving congestion in the federal judicial system. Roosevelt, for his part, savored the irony that the original notion had come from McReynolds, now the most hostile Justice on the Court.

Through all these months, the President had given little indication of what he was considering. After the adverse decision in schechter poultry corporation v. united states, he had said, "We have been relegated to the horse-and-buggy definition of interstate commerce," but so loud were objections to this remark that he made almost no public utterance about the Court for the next year and a half and did not raise the issue in the 1936 campaign. No cabinet officer save Cummings knew of the surprise he was about to spring, and he confided nothing to his congressional leaders until the very end.

On February 5, 1937, Roosevelt stunned the nation by sending to Congress a plan to reorganize the federal judiciary. He prefaced the proposal by claiming that aged and infirm judges and insufficient personnel had created overcrowded federal court dockets and by asserting that "a constant and systematic addition of younger blood will vitalize the courts." To achieve this goal, he recommended that when a federal judge who had served at least ten years waited more than six months after his seventieth birthday to resign or retire, a President might add a new judge to the bench. He could appoint as many as six new Justices to the Supreme Court and forty-four new judges to the lower federal tribunals.

The President's message elicited boisterous opposition. From the very first day, opponents characterized his scheme as "court packing" and accused Roosevelt of tampering with the judiciary. Within weeks, they had forced him to back away from his crowded dockets-old age rationale by demonstrating that the Supreme Court was abreast of his work. Especially effective was a letter from Chief Justice Hughes read by Senator burton k. wheeler at the opening of hearings before the senate judiciary committee. An increase in the size of the Court, Hughes objected, would not promote efficiency, but would mean that "there would be more judges to hear, more judges to confer, more judges to discuss, more judges to be convinced and to decide."

Despite fervent and well-organized protests, commentators concluded that the legislation was likely to be approved because Roosevelt had such huge Democratic majorities in both houses of Congress. After the 1936 elections, the Republicans were reduced to only sixteen members in the Senate. In the House, the Democrats had a 4–1 advantage. Although there were some conspicuous defectors, such as Wheeler, it seemed unlikely that enough Democrats would break with a President who had just won such an emphatic popular verdict of approval to deny him the legislation he sought.

A series of unanticipated decisions by the Court, however, drastically altered this situation. On March 29, the Court, in a 5–4 ruling in west coast hotel co. v. parrish (1937), validated a minimum wage act of the state of Washington essentially the same as the New York law it had struck down the previous year. Two weeks later, in a cluster of 5–4 decisions, it upheld the constitutionality of the wagner (national labor relations) act. InMay, by5–4 and 7–2, it validated the Social Security Act. The critical development in these votes was the switch of Justice Roberts, who for the first time since the spring of 1935, broke away from the Four Horsemen to uphold social legislation. Roberts's turnabout gave Roosevelt a 5–4 advantage, which swelled to a prospective 6–3 when, also in May, one of the Four Horsemen, Willis Van Devanter, announced that he was retiring. On that same day, the Senate Judiciary Committee voted, 10–8, to recommend against passage of the bill, and administration polls of the Senate found that as a consequence of these developments Roosevelt no longer had the votes. "A switch in time," it was said, "saved nine."

Roosevelt, however, persisted in trying to put through a modified Court-packing measure, and he almost succeeded. In June, he advanced a compromise raising the suggested retirement age from seventy to seventy-five years and permitting him only one appointment per calendar year. Although watered down, this new version preserved the principle of the original bill and would give him two new Justices by January 1, 1938 (one for the calendar year 1937 and one for 1938), as well as a third Justice for the Van Devanter vacancy. In July, when Court-packing legislation finally reached the Senate floor, the opposition found that Roosevelt had a majority for this new proposal if it could be brought to the floor. The President's advantage, however, rested on the influence of the domineering Senate Majority Leader, Joseph T. Robinson, but when shortly after the debate began, Robinson died, Roosevelt's expectation went down with him. On July 22, the Senate voted to inter the bill in committee.

Roosevelt had suffered a severe defeat, but he insisted that, although he had lost the battle, he had won the war. To the Van Devanter vacancy, he soon named hugo l. black, an ardent New Dealer and supporter of Court packing, and within two and a half years of his defeat, he was able to appoint a majority of the nine Justices. This "Roosevelt Court," as it was called, never again struck down a New Deal law. Indeed, it took so expansive a view of the commerce power and the spending power and so circumscribed the due process clause that scholars speak of the "Constitutional Revolution of 1937." Not once since then has the Court stuck down any significant law—federal or state—regulating business. The struggle over Court packing, however, cost Roosevelt dearly, for it solidified a bipartisan conservative coalition arrayed against further New Deal reforms.

Although no President since Roosevelt has advocated a Court packing statute, the charge of packing has been raised against three of his successors. When, in his final year in office, lyndon b. johnson sought to elevate Associate Justice abe fortas to the Chief Justiceship, conservative Republicans charged him with a "midnight judge" kind of maneuver to deny his probable successor, richard m. nixon, the opportunity to make the selection, and after revelations about Fortas's comportment, the endeavor failed. So frank was Nixon in turn about stating his desire to reverse the doctrines of the warren court that he was accused of trying to pack the Supreme Court with conservative jurists when he made nominations such as those of Clement Haynsworth and G. Harrold Carswell. Both of these nominations were rejected, but Nixon won confirmation of four other choices, including warren e. burger as Chief Justice, although they were sometimes to disappoint him by their subsequent behavior. An even louder outcry arose over ronald reagan's selections. His attempt to place Robert Bork on the Supreme Court was turned aside, but he secured approval of four other nominees, all regarded as sharing his conservative outlook. He had even greater success in the lower federal courts. His efforts were decried as, in the title of one book, Packing the Courts: The Conservative Campaign to Rewrite the Constitution, but neither Reagan nor Nixon had acted markedly differently from such twentieth-century predecessors as william howard taft, warren g. harding, and Franklin D. Roosevelt, although none of the others may have exhibited such sedulous ideological zeal.

William E. Leuchtenburg
(1992)

Bibliography

Alsop, Joseph and Catledge, Turner 1938 The 168 Days. Garden City, N.Y.: Doubleday, Doran.

Leuchtenburg, William E. 1966 The Origins of Franklin D. Roosevelt's "Court Packing" Plan. In Philip B. Kurland, ed. The Supreme Court Review: 1966. Pages 347–400. Chicago: University of Chicago Press.

——1969 Franklin D. Roosevelt's Supreme Court "Packing" Plan. In Harold M. Hollingsworth and William F. Holmes, eds., Essays on the New Deal. Pages 69–115. Austin: University of Texas.