A Statement by Frank E. Gannett, Publisher, Gannett Newspapers

Letter

By: Frank E. Gannett

Date: February 23, 1937

Source: The National Archives. "Teaching With Documents: Constitutional Issues: Separation of Powers." <http://www.archives.gov/education/lessons/separation-powers/#documents> (accessed May 19, 2006).

About the Author: Frank E. Gannett (1876–1957) founded the newspaper organization that bears his name in 1906. By 1937, Gannett had constructed a media empire that today remains one of the most influential in the United States. Gannett was a vociferous opponent of the New Deal policies of President Franklin Roosevelt. He expressed his opposition to Roosevelt both through his newspapers and through his leadership of the National Committee to Uphold Constitutional Government, an organization founded in response to the Roosevelt plan to increase the size of the Supreme Court in 1937.

INTRODUCTION

Franklin Roosevelt's election as president of the United States in 1932 precipitated a series of legislative initiatives designed to counter the toll that had been exacted by the Great Depression upon both the American economy and large segments of the American population. Between 1933 and 1935, Roosevelt and his Democratic administration passed into law the National Recovery Administration, the Agricultural Adjustment Act, and a host of other measures designed to provide relief to the disadvantaged and a stimulus to the American economy. These programs are best known by the collective term used by Roosevelt, the New Deal.

The New Deal was roundly attacked by both the Republican Party leadership and elements of Roosevelt's own Democratic Party. Conservative elements equated the New Deal with socialism, and many Americans were concerned about the potential centralization of power in the office of the President. A number of challenges to the constitutionality of the various components of the New Deal were initiated. As these challenges worked their way for determination to the U.S. Supreme Court, it became apparent that the New Deal initiatives were not viewed favorably by the court. In May 1935, the Supreme Court ruled three of Roosevelt's initiatives to be unconstitutional, precipitating a series of statements by Roosevelt regarding the hostile attitude of the court towards progress.

Roosevelt's resounding victory in the November 1936 presidential election set the stage for his plan to redefine the composition of the Supreme Court in a fashion that was favorable to the New Deal legislation yet to come before the Court. On February 5, 1937, Roosevelt announced his intention to introduce the Judicial Reorganization Bill of 1937. The Bill would provide the President with the power to appoint an additional Supreme Court justice for every current sitting justice who was 70.5 years of age or older. Roosevelt's stated rationale for the bill was a desire to have a sufficient number of justices to carry out the work of the Court; critics of the plan labeled the proposal "court packing," setting the stage for one of the most bitter constitutional battles in American history.

In a less-publicized aspect of Roosevelt's plan, Supreme Court justices could be transferred to lower courts to rule on cases; in such a structure, pro–New-Deal judges could be assigned to rule on New Deal legislation.

At the heart of the controversy was the structure of American government as mandated by the U.S. Constitution. The Constitution created a three-part system of government, where the powers of the executive branch, headed by the president, the legislative branch, comprised of the Senate and the House of Representatives, and the judiciary are evenly balanced. Influential conservatives such as Frank Gannett saw the Judicial Reorganization Act as an attempt by the president to take control of the judiciary and thus take control of government itself.

Defenders of the existing Supreme Court structure pointed to the fundamental importance of judicial impartiality that the Constitution sought to protect. Supreme Court justices are appointed for life to make them less vulnerable to either political influence or swings in public opinion.

Roosevelt introduced the judicial reorganization bill in the Senate in February 1937. Public sentiment was not favorable to its passage, even though large segments of the American public felt the Supreme Court was essentially defeating the will of the people in ruling New Deal legislation as unconstitutional. Other events overtook the proposed legislation. A New York State minimum wage law—a crucial piece of New Deal legislation—was unexpectedly approved by the Court when Justice Owen J. Roberts aligned himself with the pro–New-Deal wing of the Court. This event prompted the expression, "A switch in time saved nine." The proposed judicial reorganization legislation was never passed, resulting in an apparent victory for Roosevelt's opponents, such as Frank Gannett.

PRIMARY SOURCE

President Roosevelt had cleverly camouflaged a most amazing and startling proposal for packing the Supreme Court. It is true that the lower courts are slow and overburdened, we probably do need more judges to expedite litigation but this condition should not be used as a subtle excuse for changing the complexion and undermining the independence of our highest court. Increasing the number of judges from nine to fifteen would not make this high tribunal act any more promptly than it does now, but it would give the President control of the Judiciary Department.

A year ago I predicted that this is exactly what would happen if Roosevelt was reelected. The Supreme Court having declared invalid many of the administration measures the President now resorts to a plan of creating a Supreme Court that will be entirely sympathetic with his ideas. Provision has been made for amending the Constitution. If it is necessary to change the Constitution it should be done in the regular way. The President is mistaken, if he thinks he can conceal his real purpose of packing, influencing and controlling the Supreme Court by confusing that objective with a long dissertation on the slow action of our various courts.

The Supreme Court has been the anchor that has held America safe through many storms. Its absolute independence and integrity must never be in doubt.

Our Government is composed of three departments, Legislative, Executive and Judiciary. These are the foundations of our Democracy. As a result of the election and the transfer of powers by so-called emergency measures, the Executive now dominates the Legislative Department. The President now proposes also to dominate the Judiciary. Do we want to give to this man or any one man complete control of these three departments of our Government which have from the beginning of the Republic been kept entirely separate and independent?

This proposal should give every American grave concern for it is a step towards absolutism and complete dictatorial power.

Frank E. Gannett.

SIGNIFICANCE

The constitutional issues detailed by Frank Gannett in his open letter of February 1937 represent one of the most concerted challenges to the function of American government in the history of the nation. The ability of a president to appoint Supreme Court justices to fill a vacancy is inherent in the power of the American executive branch, but to create a court that was as large as the President needed it to be to pass his legislative programs was a remarkable attempt to extend his executive authority.

Roosevelt's desire to impose his will upon the Supreme Court composition was all the more remarkable when it is assessed against the entire history of the Court. Created in 1789, the historical attitude adopted by the Court towards the constitutionality of legislation was remarkably conservative—only two government bills were held to be unconstitutional between 1789 and the end of the American Civil War in 1865. Six bills were ruled to be unconstitutional between 1865 and 1930. The Supreme Court's apparent lack of regard for the constitutionality of the components of the Roosevelt New Deal is an isolated approach when considered against the sweep of history.

Roosevelt's judicial reorganization scheme had some curious features. Roosevelt had made the age of the Supreme Court justices a significant issue in his public comments about the reorganization; six of the nine justices were then over seventy years of age, yet Roosevelt made no mention of whether the election of a president or a member of Congress should be similarly limited by age considerations. It is noteworthy that Roosevelt's concerns regarding the age of a sitting justice have never prompted the imposition of an age limit. A U.S. Supreme Court appointment remains one made for life, or until the justice retires or dies. By contrast, Canada, a country that shares a common legal heritage with the United States, mandates the retirement of its Supreme Court members at age seventy-five.

The attempt by Roosevelt to control the Supreme Court remains a classic example of losing a battle but winning the war. Whether in response to the attempts by Roosevelt to change the Court composition, or as a result of a genuine change in the judicial outlook towards the New Deal initiatives that remained to be considered by the Court, the Supreme Court took a more favorable view of the New Deal program from 1937 forward. Roosevelt gained the further advantage of the passage of time between 1937 and 1941; as justices retired or died, Roosevelt exercised his prerogative to appoint justices whom he believed would be favorable to his administration. By 1941, seven of the Supreme Court justices were Roosevelt appointees.

A further significance of the efforts of Roosevelt to control the Supreme Court rests with the contrast between Roosevelt's reorganization initiative and the entirety of his political career. His desire to pack the Supreme Court must be seen as Roosevelt's most illconceived decision in a long and successful political career. As president, he artfully maneuvered the nation to accept the New Deal as necessary to the survival of America's economic structure; his policies provided some measure of relief to those devastated by the Depression, and the related environmental impacts of the Midwest droughts. Roosevelt, through careful statesmanship, brought the United States into the European war indirectly, through his support of Great Britain from 1939 through 1941. The transparency of his characterization of the judicial reforms he desired in 1937 as necessary to assist with the workload of the Supreme Court are remarkable, given Roosevelt's obvious political talents.

The Supreme Court issues of 1937 are also significant for the fact that in the intervening period, there have been relatively few public issues concerning the structure and the composition of the court. Modern American judicial history includes some heated nomination hearings (Robert Bork in 1987 and Justice Clarence Thomas in 1991 are notable examples), but there have been no serious efforts to fundamentally alter how the Court conducts its business.

FURTHER RESOURCES

Books

Brandt, J. Donald. A History of Gannett 1906–1993. Arlington, Va.: Gannett Company, 1993.

Leuchtenburg, William E. The Supreme Court Reborn: The Court Revolution in the Age of Roosevelt. New York: Oxford University Press, 1995.

Web sites

Notable American Unitarians. "Frank Gannett: Newspaper Publisher, 1876–1957." <www.harvardsquarelibrary.org/ unitarians/gannett.html> (accessed May 19, 2006).

PBS. "American Experience: Franklin Delano Roosevelt." <www.pbs.org/wgbh/amex/presidents/32_f_roosevelt/ index.html> (accessed May 19, 2006).