Supreme Court

Today in History: Franklin Roosevelt Tries to Pack the U.S. Supreme Court

Remembering the lessons of FDR's executive overreach.

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Credit: Library of Congress

On this day in 1937 President Franklin Roosevelt introduced his notorious plan to pack the U.S. Supreme Court. According to FDR, the greying Court had become out of touch with "changed conditions" and "the needs of another generation." His plan was to completely reorganize the federal judiciary by granting himself (and all future presidents) the power to appoint one new federal judge to match every sitting judge that had served at least 10 years and had not retired or resigned within six months of turning 70. Specifically, FDR would get to add as many as 44 new federal judges and, most important to him, up to six new Supreme Court justices.

In my recent book Overruled: The Long War for Control of the U.S. Supreme Court, I discussed how FDR's scheme came to meet its well-deserved end. Notably, Roosevelt's biggest opponents in the Court fight turned out to be progressive leaders such as Justice Louis Brandeis and Democratic Sen. Burton K. Wheeler of Montana. Here's an except from Overruled on the court-packing plan:

It was no secret to anybody what Roosevelt's true motives were. He wanted to appoint a fresh slate of liberal justices who were ready, willing, and able to practice judicial deference and uphold future New Deal legislation.

Unfortunately for the president, the plan backfired spectacularly. Brandeis, offended at both the personal insult and the frank attack on the independence of the judiciary, maneuvered behind the scenes to bring about the bill's defeat. Most significantly, he put the bill's chief congressional opponent, Democratic Senator Burton K. Wheeler of Montana, in touch with Chief Justice Charles Evans Hughes, who had prepared a memo, signed by himself, Brandeis, and Justice Willis Van Devanter, testifying that the Supreme Court was completely on top of its workload and was in no need of any young blood to pick up the non-existent slack. During testimony on the court-packing proposal before the Senate Judiciary Committee, Senator Wheeler unveiled that memo to great effect. Thwarted by such legislative maneuverings, not to mention by the broad public opposition to his apparent tinkering with a co-equal branch of government, Roosevelt failed to garner the necessary votes and the court-packing plan went down to defeat in the Senate.

It's often forgotten today that a number of influential liberals of the 1930s came out against FDR's executive overreach. In addition to Brandeis and Wheeler, there was also Al Smith, the legendary New York Progressive who accused the New Dealers of betraying the Democratic Party in favor of socialistic government. "It is all right with me if they want to disguise themselves as Norman Thomas or Karl Marx, or Lenin, or any of the rest of that bunch," Smith famously declared of FDR and his brain trusters, "but what I won't stand for is to let them march under the banner of Jefferson, Jackson, or Cleveland."

Smith's main objection to the New Deal was not its progressivism; Smith objected to the massive centralization of power in Washington. A committed foe of alcohol prohibition—a "wet" in the political parlance of the day—Smith had been outraged by the damage done under the 18th Amendment. Prohibition, Smith wrote in 1933, "gave functions to the Federal government which that government could not possibly discharge, and the evils which came from the attempts at enforcement were infinitely worse than those which honest reformers attempted to abolish." As biographer Christopher Finan later observed, Smith "began to believe that the danger of giving new power to the federal government outweighed any good it might do."

For more on the New Deal and its discontents, check out the following articles from Reason's archives:

  • Bad Deal. How FDR made life worse for African Americans.

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  1. It’s often forgotten today that a number of influential liberals of the 1930s came out against FDR’s executive overreach.

    Utopia brought down by traitors.

  2. You know who else was Hitler?

    1. Me?

      1. He didn’t say “worse than” Hitler.

    2. Charlie Chaplin?

    3. Moe Howard?

    4. Baby Hitler?

    5. Eric Cartman on Halloween?

  3. “but what I won’t stand for is to let them march under the banner of Jefferson, Jackson, or Cleveland.”

    I guess he got his wish. I believe they’ve all been erased from the party.

  4. the greying Court had become out of touch with “changed conditions” and “the needs of another generation.

    Said every evil dictator ever.

  5. Prohibition, Smith wrote in 1933, “gave functions to the Federal government which that government could not possibly discharge, and the evils which came from the attempts at enforcement were infinitely worse than those which honest reformers attempted to abolish.”

    It’s funny how we talk about Prohibition like alcohol was something special that required a constitutional amendment to ban, whereas so many other things can now be banned by the federal government by simply passing a law or even by unelected officials running regulatory agencies.

    Different times indeed.

    1. Well, the same period saw the rise of drug prohibition through taxation. It was ineffective prohibition and the court danced around admitting that the federal government was using tax powers to prohibit drug use, though the federal government was experimenting with bans at that point.

      The ban on drugs through taxation was actually pretty influential and led to similar measures being used against child labor (where the court infamously DID call the federal government out for its abuse of its tax powers) and under FDR, guns. Well, put it this way – the Court initially struck down the Harrison Narcotics Act in a lopsided vote, but then a few years later with a progressive shift (1916 versus 1919), in a 5-4 vote, they approved of it.

      The real issue is that we’ve always had a political court to some extent, and there are certain issues they rule based on reality or principles and others where they pretend to be oblivious. So you have a set of Justices who strike down child labor laws under the guise of a tax, but not icky drug prohibition.

      The New Deal era and those Courts basically just got rid of the fictions and recognized what was already happening. They basically just let loose the flood gates which were already littered with holes the progressives had shot into from the Wilson era on and which conservatives sometimes allowed or went along with, and which sometimes they opposed.

      1. And there are those who call the slippery slope a fallacy.

        1. The slippery slope is a fallacy.

          Recognizing that “I promise I’ll just put the tip in, for a second” is bullshit isn’t a slippery slope fallacy. It’s having a calibrated BS detector.

        2. The slippery slope is fallacious logic, which is why politicians use it so much. They’re also big fans of post hoc, ergo propter hoc.

    2. You can thank the Supreme Court’s Commerce Clause jurisprudence for that, motivated almost entirely by the New Deal.

    3. Back then they at least pretended to give a shit about the constitution and rule of law. I know, how quaint.

  6. Too bad FDR eventually got to push through bullshit like Wickard anyway.

    1. The two are related even if the Holmes vehemently denied it. There was a lot of pressure on the Supreme Court to stop getting in the way and the court packing scheme was the breaking point. But you also have to look at the dangers of a president being around for four elections – he is going to get to appoint a number of justices naturally.

      FDR really is one of the biggest pieces of garbage to ever grace the White House if not the worst. Far better men than him had enough decency to step down after two terms. The guy was tyrannical.

      What is rarely discussed is how he showed open disdain for the Constitution. New Dealers were openly using Marxist class rhetoric to attack the Constitution and bill of rights which they argued were only social constructs from the wealthy aristocratic classes to protect their interests at the expense of everyone else. You know, the right to be able to steal from your neighbor and give to yourself was being infringed.

    2. What is wickward exactly? I forget

      1. Wickard v. Filburn was a Supreme Court case which held that Congress – via the Commerce Clause – could regulate wheat grown and consumed on one’s land (i.e., wheat that did not enter interstate commerce) if the practice could have a substantial effect on interstate commerce.

        1. Damn. Is this related to the burning of crops thing?

        2. It’s actually a bit more expansive than that. There were cases before Wickard that actually had expanded the commerce clause to do what you suggested. The wheat here was grown and not sold at all, but since growing wheat also meant they wouldn’t be buying it, the government could regulate that. Basically, it meant that any action that even in some immeasurable way could impact commerce was within the purview of the federal government.

          Wickard was the third of the big three cases that expanded commerce clause powers.

          The ‘Wickard court’ also came out and explicitly stated that the government could use its tax powers anyway it wanted with no limits. So, it could use taxes to get around restrictions on government powers. Prior to that, the court had held, at least theoretically, that the feds could not use taxation to usurp powers not given to it.

          1. Thanks for that. It’s been awhile since I read the case.

          2. Shorter explanation:

            Wickard held that the founders spent years devising a document that limited the power of government only to nullify it with the commerce clause.

      2. What is wickward exactly?

        The downfall of America.

  7. And then the race was on to find the legislation unconstitutional before the makeup of the Court was changed. But would even the newly packed Court agree with a law that could see them removed by future presidents?

  8. Hey, speaking of giving functions to government which government can’t possibly discharge, the City of Seattle now wants to go over your work schedule and make changes to it. oh, and this event was sponsored by a union.

    Imagine if legislators went to a drug company-sponsored event and wrote legislation dictated to them by those drug company executives. I think we’d call that corruption.

    Having recently passed paid sick-time standards and a higher minimum wage for workers, the Seattle City Council might next consider legislation requiring more consistent and livable schedules for employees of companies like Starbucks.

    Two council members took part Thursday in a “Secure Scheduling Online Town Hall” held by Working Washington, a union-supported worker-advocacy organization.

    Councilmembers Lisa Herbold (District 1) and Lorena Gonz?lez (Position 9) heard workers speak about scheduling problems, then said they would pursue legislation.

    1. I guess Seattle is determined to eventually drive every business out of town.

      1. “I guess Seattle is determined to eventually drive every business out of town.”

        More annexation will fix that.

    2. Mmm, taste the fascism.

      1. It’s hard to taste anything with a boot stamping on your face.

    3. Starbucks won’t be the one that’s hosed.

      Amazon would be royally fucked. They count on a lot of well compensated employees putting in serious hours.

      I wonder what will happen to accounting firms?

      1. I’m guessing the law will single out the ‘retail’ sector in some fashion. BTW, you know who else wanted to organize the economy into specific, discreet sectors and industries for the benefit of the nation?

  9. Yet in the end, FDR got what he wanted.

    1. Polio?!

      1. Wanted, not deserved.

    2. What did he want sorry im a bit slow? Im thinking war and or satisfy his control freak urges

      1. He got to replace most of the Supreme Court justices as the other justices died off or retired. He ended up with a court just as much “packed” as if Congress had given him the extra justices.

  10. The same year FOR signed the Marijuana Tax Act making the Devils weed illegal at the federal level. Negro jazz musicians and Mexican laborers hardest hit.

    1. “FDR ”

      fuckin autocorrect

    2. He wasn’t a southerner, so he couldn’t be racist.

      1. I believe he spent time in Georgia so he may have picked it up while there.

  11. Wasnt fdr incredibly wealthy? Like those limousine socialists of today…wealth for you is bad but wealth for me is good

  12. I’m a little surprised that our “progressive” comrades aren’t here raging about this article and the comments. FDR is one of their little tin gods, so I figured they’d be in full piss-their-pants-with-rage mode.

    1. Nobless Oblige goes back farther than 1932.

  13. Smith had been outraged by the damage done under the 18th Amendment. Prohibition, Smith wrote in 1933, “gave functions to the Federal government which that government could not possibly discharge, and the evils which came from the attempts at enforcement were infinitely worse than those which honest reformers attempted to abolish.”

    What’s amazing to me is how many people now agree with this sentiment when it comes to alcohol prohibition, but can’t seem to apply that same line of thought to the WoD.

  14. Today’s assault on the judiciary is different. It’s by the grassroots and it’s from the right. Its roots trace to southern racists and the KKK. Their goal, like FDR’s, is to smash and destroy our Constitution.

    The attack is on equal, unalienable and/or God-given rights. The primary targets are homosexuals and pregnant women. And “rogue judges” to the brainwashed followers of the Liberty Cult … which has infiltrated the liberty movement.

    Replace FDR with Ron Paul. If Al Sharpton is a race hustler, and he is, then Ron Paul is a liberty hustler. We see Ron in liberty venues because, being tribal, that’s the only place we look. But he spends far more time recruiting cult followers from among the worst conspiracy nuts, wackos and haters .. Alex Jones, Stansbury Research, Infowars.com, and their ilk.

    He appeal comes from providing plausible sounding “constitutional” arguments to dignify their bigotry and theocratic statism … the same “intrusive federal government” cited by Orval Faubus when he activated his state militia to forcibly forbid 9 black kids from registering at Little Rock’s Central High School. Eisenhower dispatched federal troops to Arkansas, with orders to use force if necessary.

    The liberty movement stands with Eisenhower — use force, if necessary, to, defend individual liberty. The liberty cult stands, proudly and defiantly, with Orval Faubus, George Wallace and the Klan.

  15. Supreme Court Justices should be limited to 10 years no matter what

  16. Every time FDR comes up in my reading, I get a new reason to consider him a monster.

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