When Roosevelt failed to pack the Supreme Court

Although Franklin D Roosevelt is rightly hailed as a popular hero who led America through Word War II, there were darker sides to his presidency, including a blatant bid to pack the Supreme Court with his supporters. He wanted to expand the court to outvote the justices who were blocking some of his New Deal legislation because in their eyes it violated the Constitution they were sworn to uphold. On July 22nd, 1937, the US Senate voted down his Judicial Procedures Reform Bill by voting 70-20 to send it back to committee, where the controversial innovations were deleted from it.

Although the Judiciary Act of 1869 had stipulated a Chief Justice and 8 others to make up the Supreme Court, Roosevelt suggested that because this wasn’t in the US Constitution, Congress had the power to change it. He wanted power to appoint extra justices up to a maximum of 6, to supplement the existing 9 members when any failed to retire on reaching the age of 70 years 6 months. The aim was to add justices to outvote those striking down some of his New Deal Measures.

Although he unveiled it in one of his fireside chats and sought popular support, the public remained hostile on balance after brief initial backing. The President claimed that the Court needed more members because it “was having to decline, without any explanation, to hear 87% of the cases presented by private litigants.” Chief Justice Charles Evans Hughes publicly denied this, claiming that for several years they had been hearing cases with 4 weeks.

Democratic committee chair Henry F. Ashurst delayed hearings in the Judiciary Committee, holding the bill in committee for 165 days, contributing to its ultimate defeat. The Republican National Chairman, Henry Plather Fletcher, suggested that “an administration as fully in control as this one can pack it [the Supreme Court] as easily as an English government can pack the House of Lords." He was right, in that the threat to do this has been used several times in the UK to secure the compliance of the Upper House.

Although FDR lost out to his Chief Justice, who was backed in Congress by the President’s opponents, FDR did, by staying in office 12 years, eventually get to appoint 8 of the 9 justices. However, it was the vote in the Senate on this day in 1937 that is reckoned to have saved the independence of the judiciary.

What we observe in history is that if the executive acquires this kind of power, it will eventually use for to get its own way on trivial, everyday matters, in addition to the vital ones used to justify the power. The Parliament Act that reduced the delaying power of the UK’s House of Lords “in cases of vital national emergency,” was used by Tony Blair to ban fox-hunting. The universal lesson is that in a democracy, you don’t acquire extra powers that you are not happy to see the other side use at a later date. President Trump has made use of the Executive Orders, and the reduced majority needed to confirm judges, that were the hallmarks of Barack Obama’s administration.