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Dear Democrats: FDR’s court-packing scheme was a ‘humiliating’ defeat

Yet the idea has been revived by some of the liberals seeking the presidency

On March 9, 1937, President Franklin D. Roosevelt pushed his "court-packing" plan in a radio address. (Video: Franklin D. Roosevelt Presidential Library)

George Washington had six. Abraham Lincoln had 10. And Franklin D. Roosevelt, who has the distinction of being elected to more terms than any other president, wanted 15. Supreme Court justices, to be exact.

Democrats angry about Senate Republicans’ refusal to vote on Supreme Court nominee Merrick Garland are reviving a New Deal-era idea to increase the number of justices, to re-balance the court in their favor. But the defeat of Roosevelt’s “court-packing” proposal in 1937 was one of worst moments of his presidency, and he was rebuked and embarrassed by his own party.

It started on May 27, 1935 — known back then as “Black Monday.” On a single day, the Supreme Court struck down three of President Roosevelt’s signature New Deal laws.

At the time, Democrats controlled the House, Senate and White House, but the court, led by Chief Justice Charles E. Hughes, was a Republican and 75 years old. Because of a New Deal cut in Supreme Court pensions, the older justices were disinclined to retire.

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And then they kept voting against the New Deal. Roosevelt believed they were preventing him from doing what was needed to rescue Americans from the Great Depression.

Shortly after winning a second term, the president proposed his fix in 1937: Expand the bench by six justices — one for each justice over the age of 70.

Roosevelt claimed the measure was needed to clear backlogged dockets and for “a constant infusion of new blood in the courts.”

Washington Post columnist Franklyn Waltman didn’t buy it, writing, “Mr. Roosevelt’s real objective is to make the Supreme Court amenable to his will, either by forcing from that tribunal some of those who have disagreed with him, or by permitting him to offset their votes with men of his own choosing.”

The president pushed the change a month later in a fireside-chat radio address. (Listen to a clip from that address in the video at the top of this post.)

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Even after Roosevelt explained his rationale, the bill was unpopular in both parties. According to Marian C. McKenna, author of “Franklin Roosevelt and the Great Constitutional War: The Court-Packing Crisis of 1937,” House Judiciary Committee Chairman Hatton W. Sumners, a Democrat, refused to hear it, so it was sent to the Senate Judiciary Committee instead. There it was buried in protracted hearings led by another Democrat, Sen. Henry Ashurst.

Even Roosevelt’s vice president, John Nance Garner, was against it. While the bill was read on the Senate floor, Garner stood in the back of the chamber “holding his nose with one hand and vigorously shaking his thumb down with the other,” McKenna says.

Meanwhile, on March 29, 1937, the court handed down three more decisions, this time favorable to the New Deal. It seemed like a win for Roosevelt, but it undercut his argument for packing the court. It was further undercut in May when one of the justices announced his retirement, on the same day the bill finally left committee with an “adverse” vote.

The bill was dealt a final blow that July with the death of Senate Majority Leader Joseph T. Robinson. Robinson was one of few vocal supporters of the court-packing plan; Roosevelt had promised him a seat on the expanded bench. The bill was sent back to committee on a 70-to-20 vote and stripped of all its most controversial provisions.

The court-packing plan “divided the New Deal coalition, squandered the political advantage Roosevelt had gained in the 1936 elections, and gave fresh ammunition to those who accused him of dictatorship, tyranny, and fascism,” historian Michael Parrish wrote in the Washington Law Review in 1984. “When the dust settled, FDR had suffered a humiliating political defeat.”

But in the end, Roosevelt still got what he wanted. By the close of his second term, three justices had retired and two had died. He got to replace all of them. All told, Roosevelt appointed nine justices to the Supreme Court.

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