July 22, 2010
If President Franklin D. Roosevelt had gotten his way, today’s presidents would be able to appoint a new justice to the Supreme Court for every justice who remained on the bench after the age of 70 1/2. This would have meant that the current court could have as many as 13 members, because justices Stephen Breyer, Ruth Bader Ginsburg, Anthony Kennedy and Antonin Scalia were all born during the 1930s.
Roosevelt’s plan was a response to a conservative Supreme Court that seemed determined to knock down the various pieces of legislation that made up the president’s New Deal. During FDR’s first term, four of the nine Supreme Court justices – Pierce Butler, James McReynolds, George Sutherland, and Willis Van Devanter – voted so consistently against federal government expansion under the New Deal that editorial writers took to calling them the Four Horsemen of the Apocalypse. And in 1935, a fifth justice – Owen Roberts – began voting regularly with the Four Horsemen, giving them a solid majority.
In 1935 and 1936, the Supreme Court invalidated more significant Congressional acts than any court in history. Among its targets were the National Recovery Administration, Roosevelt’s industrial redevelopment agency, and the Agricultural Adjustment Act, which provided subsidies to farmers. The justices toppled these and other pillars of New Deal through a systematic narrowing of the commerce clause, which was constricted to the point that even the massive coal industry no longer met the High Court’s threshold for Congressional oversight.
Roosevelt and his supporters feared that the Court was poised to strike down two cornerstones of the New Deal: the Social Security Act and the National Labor Relations Act, which gave private-sector workers the right to organize. In February of 1937 – shortly after his landslide reelection – Roosevelt’s backers in Congress proposed the Judiciary Reorganization Bill of 1937. The stated reasoning behind the bill was that the current nine justices were getting older (the youngest was 60) and falling behind in their work.
Even though it was clear that the Supreme Court wasn’t behind in its docket, many expected the Democratic majority in Congress to pass the bill anyway. However, on July 22, 1937, the Senate voted to send the bill back to the Senate Judiciary Committee, explicitly ordering it to strip out the court-packing provisions.
One possible reason for the proposal’s demise: Starting in early 1937, Justice Owen Roberts broke away from the Four Horsemen and began voting to uphold progressive legislation in the face of court challenges. But even without Roberts’s change of heart, the controversial proposal would have faced an uphill battle, because even many of FDR’s allies saw it as executive overreach. The Senate Judiciary Committee called it “a measure which should be so emphatically rejected that its parallel will never again be presented to the free representatives of the free people of America.”
And so it is that the Supreme Court has been composed of nine justices for 142 years and counting – even though adding a justice (or two, or three) would require nothing more than a simple majority vote in both houses of Congress.
For a richly detailed account of the politics and events surrounding FDR’s court-packing scheme, read “Showdown on the Court” on Smithsonian.com.