The Washington PostDemocracy Dies in Darkness

FDR tried to pack the Supreme Court during the Depression. It was a disaster for him.

On March 9, 1937, President Franklin D. Roosevelt pushed his "court-packing" plan in a radio address. (Video: Franklin D. Roosevelt Presidential Library)
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It was called “Black Monday.” On May 27, 1935, the Supreme Court struck down three of President Franklin D. Roosevelt’s signature New Deal laws.

FDR was outraged. He believed the Supreme Court was preventing him from doing what was needed to rescue the country from the Great Depression, which had devastated the economy and forced millions of Americans into bread lines.

Now, more than eight decades later, some Democrats are once again urging an expansion of the Supreme Court in the wake of liberal Justice Ruth Bader Ginsburg’s death.

What is court packing, and why are some Democrats seriously considering it?

It didn’t go well for FDR. 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 cut in Supreme Court pensions, the older justices were disinclined to retire. And they kept issuing rulings against the New Deal.

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

The Constitution doesn’t specify how many justices should serve on the Supreme Court. George Washington nominated the six Supreme Court justices on Sept. 24, 1789, moments after Congress passed the Judiciary Act of 1789. The Senate confirmed them all in just two days. Eventually, under Abraham Lincoln, the number of justices grew to 10 before Congress decided to set the number at nine in 1869.

Roosevelt wanted 15 justices, claiming 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.

But the proposal was greeted with bipartisan derision. 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.

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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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