Today in Supreme Court History: July 22, 1937

7/22/1937: The Senate voted down President Roosevelt's Court-Packing plan, 70-20.

President Franklin D. Roosevelt

Comments

[Dan Schiavetta]

King v. Greene, 524 U.S. 965 (decided July 22, 1998): denying stay of execution and also certiorari; Stevens and Ginsburg would have granted stay (i.e., they didn’t want this guy ever to be executed); King had kicked, choked and stabbed a woman to death; the Fourth Circuit had rejected arguments that he wasn’t properly “Mirandized” (judges hate when lawyers use that term) and wasn’t provided with a lawyer when he asked

Socialist Workers Party v. Rockefeller, 400 U.S. 1201 (decided July 22, 1970): in this dispute over a party’s candidates getting onto the ballot, Harlan denies reconsideration of his July 11 order denying stay because served along with his carrot juice that morning was a letter from the Attorney General saying the candidates would be allowed on the ballot provided they comply with all the other (non-contested) requirements

Gregg v. Georgia, 429 U.S. 1301 (decided July 22, 1976): Powell, master of explaining the obvious, grants stay of numerous executions pending hearing of appeal because “if the executions in these cases were carried out before the Court hears the appeal, the harm to petitioners would be irreparable. [Well, yeah.] In addition, the cases would then be moot.” As it turned out, the convictions were upheld by the Court in Proffit v. Florida, decided October 4, 1976, and by the next day the mootness issue itself became moot.

[Noscitur a sociis]

“Mirandized” (judges hate when lawyers use that term)

What

[Dan Schiavetta]

That’s been my experience.

[Brett Bellmore]

Certainly a different time. Today a similar proposal would probably be close to a party line vote.

[Dilan Esper]

There's actually several Dem Senators who oppose court packing, which is a big reason you don't see Biden or Harris proposing it.

FWIW, obviously the politics WERE very different in the 1930's, but it wasn't really about bipartisanship here; it was more that Southern segregationist Democrats didn't want a powerful liberal SCOTUS who might mandate integration (as several of the Justices FDR eventually appointed eventually did).

[Dan Schiavetta]

I thought it had to do with the existing Court blocking New Deal legislation. Segregationists were a key part of the New Deal coalition and FDR was careful not to offend them.

[Brett Bellmore]

It's my understanding, too, that it was all about the Court blocking some of the New Deal. As they properly should have, much of the New Deal was simply outside of Congress' enumerated powers to enact.

In the end the threat alone proved sufficient, and then FDR by breaking the norm of only two terms had time to achieve a rubber stamp Court legitimately.

[Dan Schiavetta]

The “switch” by Roberts happened before the Court packing bill was announced. Unbeknownst to FDR, Roberts had voted in conference on December 19, 1936 to reverse his prior philosophy on the Commerce Clause in <West Coast Hotels v. Parrish. Supposedly this was after Chief Justice Hughes sat down with him after the 1936 FDR landslide and impressed on him the hazards of a Court too out of step with public opinion and the other two branches of the federal government.

[Brett Bellmore]

That just makes the threat more informal, doesn't it?

[Dan Schiavetta]

I don’t know if the packing idea was being bruited about as of December 1936.

The other remedy for an out of step Court is simply refusing to follow its orders.

[Brett Bellmore]

"There’s actually several Dem Senators who oppose court packing"

That's why I said "close". The Democrats will not seriously pursue this unless they are confident they have enough votes to pass it with defections. Otherwise they take the political hit for attempting Court packing, (Which would be considerable!) without any gains from having actually packed the Court.

[JoeFromtheBronx]

The situation now isn’t the same in certain respects as it was then though there remains strong concern among Democrats and independents about expanding the Supreme Court. Thus, reforms tend to be focused on term limits, ethics, addressing opinions by legislation, and now something about the immunity case.

A big difference overall is that there are not the same “nine old men” in office now. Franklin Delano Roosevelt was able to in a few years replace most of the justices. Not so easy now.

Another difference, and this is not about the merits of the case, is that the integrity of the membership, including how they were nominated and confirmed, was not the concern then.

[I shall hasten to add there was some concern that the Supreme Court then did not reflect the times & that current political actors should have more power to address them. There is some overlap here, including people noting that the current SCOTUS arose from non-popular elected presidents, etc.]

The swing voters on the Supreme Court (the so-called “switch in nine”) also responded to the landslide in 1936 by upholding the New Deal program after New Deal program. The 2024 elections are key to determining what will happen now but the SCOTUS supermajority has not shown much signs of a shift yet.

More can be said, I won’t say it here. Anyway, “if the executions in these cases were carried out before the Court hears the appeal” etc. was a major concern in those days. At times, Powell was upset at being pressured to serve as a fifth vote for a stay when he thought the reasons four justices had to hold up an execution was unwarranted.

[Brett Bellmore]

I think that a lot of the concern about the integrity of the membership is just a ploy to reduce the Court's reputation, so that eventually packing the Court would be seen as less illegitimate. Note that ethical concerns are focused purely on the Justices who don't vote the way Democrats like.

But the outcome of the 2024 election will be somewhat critical, the Court may not read the election returns, but Roberts sure as heck does.

[JoeFromtheBronx]

The strongest ethical concerns have arisen regarding Clarence Thomas. Alito has been a bit of a distant second.

Like with former Republican presidents, specific members of the current supermajority have been the focus. Why? The basic reason is that they keep on showing themselves to be unethical.

Now, these are not the only concerns. And, in each case, the merits are present. As to ethics, people have cited let's say "venial sins" of more than Alito and Thomas.

So, no, it has not been "purely" conservatives. People have been concerned about Sotomayor's books. People cited Ginsburg's misguided public remarks.

Today's Order List underlines how "both sides aren't the same." The liberal justices have explained why they do not take part in cases, citing the new ethical guidelines they voluntarily crafted. Conservatives have not.

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

Right, like million dollar book advances are more ethical. Money is money.

[Drewski]

Right. This is why politicians that receive paychecks are basically taking bribes every month. Money is money? But as it happens, there is a difference between stealing money, being handed money as a gift, being handed money as a bribe, taking back stolen money, and earning money.

I realize libertarians have a hard time understanding ethics as a concept rather than as a rhetorical device, so you may have to trust me on this one. Ask around if you don't believe me (but do it out in the world, not in some extremely-online partisan enclave).

[Brett Bellmore]

What we don't have trouble understanding is that book advances come before you've done the work, and for politically connected authors are often all out of proportion of likely profits from the books.

Gorsuch got a $225K advance on his book, "A Republic, If You Can Keep It", back in 2019. As of a year ago it had sold 42K copies, so he got a hefty $5.35 per copy in advances.

That's bird feed compared to Obama's $65M advance on his biography. To date it has sold nearly 8M copies world wide, but that's still an absurd $8 per copy in advances.

Compared to numbers like these, the concerns about Thomas look kind of petty.

[David Nieporent]

I think that a lot of the concern about the integrity of the membership is just a ploy to reduce the Court’s reputation, so that eventually packing the Court would be seen as less illegitimate.

Of course you do. Because when a liberal says X, it's never to you because they think X.

[Rev. Arthur L. Kirkland]

That is just Bellmore’s antisocial nature, autism, disaffectedness, and conspiracy theory fanboydom talking.

[Brett Bellmore]

Because they never follow the logic of X, X only controls so long as it supports what they want.

Like, people have a right to make their own medical choices about their own bodies, chose their own medical treatments. So you can't require medical cause for abortions, and if somebody wants to surgically alter their body to look like the opposite sex, and get hormone treatments, you must let them!

Oh, wait, people who want can't volunteer for conversion therapy! And we didn't really mean that performance enhancing drugs like steroids or aromataze inhibitors, or experimental life extension therapies, have to be legal.

Medical regulation in this country would look completely different if the left actually meant any of that bodily autonomy crap.

[David Nieporent]

Because they never follow the logic of X,

Because they're not robots, and therefore don't — and don't need to — "follow the logic" of everything as far as it might go.

[Brett Bellmore]

Right, being inconsistent and proving you don't really have the principles you claim to be following is a virtue. [/sarc]

[Rev. Arthur L. Kirkland]

Why is Court-Packing capitalized (other than partisanship and lack of familiarity with Standard English)?

Carry on, clingers. So far as better Americans (and the capabilities of clingers) permit.

[F.D. Wolf]

The broad rejection of Roosevelt's plan was all the more remarkable given that Democrats outnumbered Republicans in the Senate 73-22 (counting the two Farm-Labor senators as Democrats, and the one Progressive senator as neither.)

[Brett Bellmore]

Yes, at the time the Democrats could enact anything they wanted without one Republican vote, if they just agreed internally on it. But there was still a lot of lingering respect for the notion of our being a government of limited powers, across the political spectrum. Even the Democrats weren't prepared to turn the Court into a rubber stamp, even if they sometimes didn't like how it ruled.

[Dan Schiavetta]

With Louis Howe gone, FDR was surrounded by yes-men. Fortunately he learned his lesson.

[F.D. Wolf]

On a tangentially related note, relevant to current events, I was recently reading Robert H. Ferrell's The Dying President: Franklin D. Roosevelt, 1944-1945 (1998). A Naval doctor at Bethesda Medical had diagnosed the President with congestive heart failure. This information quickly spread, and the FBI actively worked to suppress it. Meanwhile, his personal physician repeatedly assured the public that he was fine. Everyone in Roosevelt's inner circle knew that he was essentially dying for the last year of his presidency, and they all actively lied to the American people about it. (One might partially understand their motives, especially given that World War II was still raging, but, ultimately, the truth is almost always more important.)

[Dan Schiavetta]

They also kept it a secret from Truman (though the one time they met he could figure out he was in bad shape). Above all they kept him out of the loop on all important matters including the development of the atomic bomb. I don’t think Truman gets enough credit for how well he did when he was thrust into the leadership on April 12, 1945.

[JoeFromtheBronx]

June 2, 1937: Willam Van Devanter is replaced by Hugo Black.

July 14, 1937: Senate Majority Leader Joseph T. Robinson, a leading supporter of the bill, dies.

[Dan Schiavetta]

Also by then the West Coast Hotels decision (and others) had been issued. The “switch in time that saved nine” had occurred.

[F.D. Wolf]

Also, on March 1, 1937, Congress passed the Supreme Court Retirement Act, allowing Supreme Court justices over 70 with ten years of service to retire at full pay. (Sometimes the carrot works better than the stick).

[The Margrave of Azilia]

FDR packed the Court anyway. Someone is reported to have told him, “Anno Domini is your natural ally.”

(If you don’t mind the triggering phrase “Anno Domini” and its theocratic implications.)

[Michael Resanovic]

People often forget that from about the early 1900s, SCOTUS had begun to show contempt for the settled and age-old rule that statutes were to be presumed constitutional unless it could be shown otherwise beyond reasonable doubt. They did so even as states courts largely continued to stay the course.

[Brett Bellmore]

People often forget that about the early 1900's, Congress had begun to show contempt for the settled and age old rule that it's powers were few and enumerated, and that most matters were outside of its reach. And so it started enacting more and more statutes that could easily be shown to be unconstitutional.

[Michael Resanovic]

Seriously? You're preaching to the choir here. I am vigorously opposed to Congress' longstanding attempts to go beyond its confined sphere, as well as our tolerance of it.

Also, state powers are many and unenumerated. And yet the court was striking down any regulation of wages or working hours it didn't like. My point is that 19th c. judicial review operated very differently from today's. When jurists can't respect tradition it is not improper to use tools under Congress control to rein them in. (I'm not saying the New Deal Congress had a leg to stand on, but it's very relevant in our own time, which is why I posted.)