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Allan Powell: Some lessons learned from 'Court packing'

January 20, 2012|By ALLAN POWELL

It takes a highly motivated writer with a dedication to detail to chronicle the drama and historical significance of what has come to be called the Roosevelt “Court packing” plan. Jeff Shesol has done a masterful job of re-creating the events and personalities behind the clash between a determined president and a recalcitrant Supreme Court. “Supreme Power: Franklin Roosevelt vs. The Supreme Court” is a superb account of the turmoil during the early New Deal years.

In one sense, all parties in this historical collision were victims of events not of their own making. The writers of the Constitution wanted a judiciary that had complete independence so Supreme Court decisions were free of unwanted influences. To achieve this independence, justices were appointed for life and their salaries were protected from being diminished. Unfortunately, the number of justices was not specified. 

With the election of Franklin D. Roosevelt and the deepening of a tenacious depression, there was a critical need for immediate relief, recovery and reform. Roosevelt speedily introduced a series of innovations that he called the “New Deal.” Novel rules and regulations affecting commerce, industry, farming and labor relations were sent to Congress. By 1935, opposition to the New Deal programs had increased dramatically and the Supreme Court, dominated by a conservative majority, began handing down a steady sequence of denials. This wreaked havoc on the early New Deal attempts to remediate a failed economy.

On May 27, 1935, dubbed “Black Monday,” the Supreme Court handed down three unanimous decisions to rebuke Roosevelt and his cadre of planners. The most significant of these decisions was the Schechter Poultry Corp. v. United States case, sometimes referred to as the “sick chicken” case. Four brothers operating a kosher poultry trade in Brooklyn, N.Y., were convicted on 19 counts of the NRA Live Poultry Code. 

The Supreme Court lost little time in finding the NRA regulations unconstitutional on two counts. First, was that Congress had delegated unacceptable powers to the president and that the Schechter brothers were not engaged in interstate commerce. In part, this was a reaction to the centralization features of the New Deal. There was more to come, and Roosevelt and his advisers began a serious study of some way to tame these stubborn, out-of-date, “nine old men.”

The most obvious remedy was an amendment to the Constitution. The setbacks to this approach were the slowness of the amending process and the uncertainty of approval. Roosevelt might have gotten the approval of both houses of Congress but ratification by three-fourths of the 48 states posed a problem. 

The year 1936 was to be a pivotal time for Roosevelt and his New Deal. A turbulent election was anticipated, and prudence suggested that success was not certain. A hostile Supreme Court declared the Agricultural Adjustment Act unconstitutional early in January. The justices argued that agriculture was a state issue and outside the powers of the federal government to regulate. This 6-3 decision was a serious blow to New Deal aspirations because they were firmly convinced that agricultural problems were national in scope.

In addition, regulations in the coal industry, bankruptcy cases and attempts at minimum wage laws also were struck down. This assault on Congress was, at the same time, an assault on the executive branch since the proposals were initiated by the president. Roosevelt had a strong conviction that the assumed power of the Supreme Court to void acts of Congress had no constitutional foundation. Cheered by his massive victory in the 1936 election, Roosevelt made the fateful decision to send to Congress a bill to bridle the power of an unfriendly court.

In early 1937, Roosevelt offered what quickly became known as the “Court packing plan.” This plan provided that when any federal judge refused to retire upon reaching 70 years of age, the president had the power to appoint another justice. Roosevelt would then gain six new appointees and would have a nine-justice majority in a court of 15 members.

The reaction was immediate, massive and negative. After much divisive recrimination, the Senate voted 70-20 against this much-maligned bill. It might be asked if the whole “Court packing” plan was worth the fight. While the political battle was raging, two unexpected gifts came to Roosevelt. First was a reversal in the opinions of Justice Roberts, whose “switch in time saved nine.” The second was the retirement of Justice Willis Van Devanter. The way was now open to proceed with other New Deal programs.

The atmosphere within the Supreme Court was now changed. With Roberts’ change of mind, a Washington State minimum-wage law was upheld. Then, Social Security was upheld and the Wagner Act — which protected collective bargaining — was given Court approval. Reforms of the New Deal were back on track.

“Court packing” is a usual and normal event. Every time a president appoints a new justice, a singular “packing” is taking place. Roosevelt’s error was packing on a larger scale.


Allan Powell is a professor emeritus of philosophy at Hagerstown Community College.

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