March 9, 2019

ROOSEVELT’S COURT PACKING SCHEME (AND ERIC HOLDER’S): In early 1937, President Franklin Delano Roosevelt had recently been re-elected in a landslide. Believing that his popularity should not go unexploited, he set about to use it as a weapon against the Supreme Court, which had been a thorn in his side during his entire first term.

Roosevelt was upset that so many parts of his New Deal legislation had been ruled unconstitutional, often in split decisions. On March 9, therefore, in one of his weekly radio Fireside Chats, he argued that in order to help the Court handle its workload, he should be authorized to add an additional Supreme Court Justice for every current Justice over the age of 70.

The Chief Justice shot back that the Court was having no trouble keeping up with its workload. Roosevelt’s true motivations were obvious. Even the most gullible Americans understood that Roosevelt wasn’t concerned with helping the Court; he wanted to stack it with New Dealers. Indeed, he essentially admitted this.

Call it one of the most audacious power grabs in American history. If he could get Congress to go with him, he could effectively nullify the Supreme Court as the third branch of government. But, though audacious, it was not unconstitutional. Congress does have the authority to change the number of seats on the Court. And it had used it in the past, sometimes not with the purest of motives.  The first Supreme Court had six seats. Nine had been the number between 1837 and 1863 and again since 1869.

The American people, however, decided that they were not amused by Roosevelt’s plan. Newspapers editorialized against it. Political cartoonists ridiculed it. Even Vice President and Senate Democrats weren’t crazy about it. It is likely that it would have gone nowhere.

But maybe nobody had told Owen Roberts that. Three weeks later, when the Court handed down its 5-4 decision in West Coast Hotel Co. v. Parrish (1937), Justice Owen Roberts, who had usually sided with the more conservative wing of the Court, switched sides and voted to uphold a minimum wage law. Roberts’ move has been forever dubbed the “switch in time that saved nine.” Maybe that was his intent. Or maybe not.

Two months later Justice Willis Van Devanter retired, and Roosevelt appointed Hugo Black, a New Dealer and former KKK member, in his place. The Court Packing plan may have had no chance. But Roosevelt had won the battle by more conventional means.

But he paid a hefty political price for the scheme. As Michael Parrish wrote, “the protracted legislative battle over the Court-packing bill blunted the momentum for additional reforms, 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. When the dust settled, FDR had suffered a humiliating political defeat ….”

Eric Holder should keep this in mind when he argues that the next Democratic President should “seriously” consider Court packing.

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