Court-packing is a terrible idea. FDR proved it.

July 07, 2022 | By OLIVER DUNFORD

After the Supreme Court handed down its controversial Dobbs decision, reporters asked White House Press Secretary Karine Jean-Pierre if the president would consider adding more seats to the Supreme Court—“packing” it with Justices who’d support the president’s agenda.

“So, I know I’ve… I was asked this question yesterday, and I’ve been asked it before… That is something that the president does not agree with,” Jean-Pierre replied. “That is not something that he wants to do.”

President Biden is right to resist calls for Court-packing.

In the Spring 2022 issue of Sword&Scales, PLF attorney Oliver Dunford revisited the story of President Franklin D. Roosevelt’s Court-packing attempt in 1935. FDR’s scheme failed—but not before it drew tremendous blowback and damaged the institution of the Court.

We’re republishing the Sword&Scales article below.

A Court-packing scheme 

By Oliver Dunford

America is suffering through a crisis for which there is no easy fix. The president is frustrated: The Supreme Court keeps knocking down his initiatives, dismissing them as unconstitutional expansions of federal power. The president fumes to reporters that the U.S. federal government deserves “the powers which exist in the national governments of every other nation in the world.” The Court, he complains, is relegating the government “to the horse-and-buggy definition of interstate commerce.”

It’s 1935. The president is Franklin Delano Roosevelt, and he’s been struggling to enact the New Deal, his plan to end the Great Depression.

But the scenario should feel familiar to us today: The Biden administration, like FDR’s, has been dealt several embarrassing setbacks at the Supreme Court as it attempts to manage the COVID-19 pandemic. Biden’s OSHA vaccine mandate and CDC eviction moratorium were both tossed out by the Court.

Now White House allies, frustrated with recent Court decisions, are urging Biden to follow in FDR’s footsteps.

They want to try packing the Supreme Court.

In a Boston Globe op-ed, Senator Elizabeth Warren argues that expanding the number of Justices on the court is necessary “to restore America’s faith in an independent judiciary committed to the rule of law.” Congresswoman Alexandria Ocasio-Cortez says Democrats can either expand the Court “or do nothing as millions of people’s bodies, rights and lives are sacrificed for far-right minority rule.” Congressman Jerry Nadler says adding seats to the Court would “restore balance to the nation’s highest court after four years of norm-breaking actions by Republicans led to its current composition.” Economist Robert Reich, secretary of labor under President Clinton, asks: “Can we finally stop pretending it’s radical to expand the Supreme Court?”

All this has happened before.

The Constitution doesn’t specify how many Justices should sit on the Supreme Court. Congress sets that number. There were initially six seats. The number dropped to five in 1801; went up to seven in 1807; increased to nine in 1837; increased yet again to 10 in 1863; dropped to seven in 1866; and went back up to nine in 1869, the year Ulysses S. Grant became president. It has remained nine ever since.

But by the mid-1930s, President Franklin D. Roosevelt was ready to change that.

He was at wits’ end with the Court. Once, while delivering a speech, FDR noted that Republicans had been in control of both Congress and the White House during the crash of Wall Street; then he went off script to quip, “I may add, for full measure, to make it complete, the United States Supreme Court as well.” As he worked with Congress to push through his New Deal agenda, FDR believed that the Court’s four stalwart conservative Justices—dubbed the Four Horsemen—would strike down New Deal laws whenever they were given the chance. Only three Supreme Court Justices—the Three Musketeers—were liberal. The remaining two—Chief Justice Charles Evans Hughes and Associate Justice Owen Roberts—were moderates.

May 27, 1935, would be remembered by the Roosevelt administration as Black Monday: The Court handed down three unanimous decisions that seemed to spell doom for the New Deal. All nine Justices voted to strike down the National Industrial Recovery Act and the Frazier-Lemke Farm Bankruptcy Act. Congress, the Court ruled, was overstepping its constitutional bounds. The Court also decided that FDR had overstepped his authority by firing the Republican head of the Federal Trade Commission without cause.

Frustrated, FDR gave an hour-long Oval Office press conference. The press conference didn’t go over well; many thought Roosevelt went too far in complaining to reporters about the Supreme Court. With re-election quickly approaching in 1936, FDR refrained from making further public comments about the Court.

But in private, Roosevelt’s allies were as upset as he was—and wheels were beginning to turn.

“I tell you, Mr. President, they mean to destroy us,” Attorney General Homer Cummings wrote to FDR in a private letter. “We will have to find a way to get rid of the present membership of the Supreme Court.”

Homer Cummings was never supposed to be FDR’s attorney general.

A former Connecticut mayor and prosecutor in his 60s, Cummings was twice-divorced and had lost every national race he’d ever run. But he’d helped FDR in the 1932 election. To reward him, Roosevelt planned to appoint Cummings as governor-general of the Philippines, which was then a U.S. territory. FDR had chosen Senator Thomas J. Walsh from Montana—a striking, highly respected member of the Senate Judiciary Committee—to serve as attorney general. But on the train to FDR’s inauguration, Walsh suddenly dropped dead. His wife of less than a week was suspected of poisoning him. Scrambling, FDR tapped Cummings as attorney general instead.

Cummings—whom the Chicago Tribune described as “rotund, but not grotesquely rotund” and “bald, but not grotesquely bald”—was an ambitious man. He soon earned accolades in the press for his aggressive campaign against crime: In his first two years as attorney general, Cummings built the Alcatraz Federal Penitentiary, led efforts to make bank robbery a federal crime, and—with the help of his FBI director, J. Edgar Hoover—launched an all-out offensive against notorious gangsters, including John Dillinger, Baby Face Nelson, and Pretty Boy Floyd (all three of whom died in shootouts with federal agents).

After FDR handily won re-election in 1936, he and Attorney General Cummings began meeting in secret to discuss the launch of a different kind of offensive: an offensive against the Supreme Court.

The hits kept on coming after Black Monday: The Court knocked down the Agricultural Adjustment Act, the Guffey-Snyder Coal Act, and the Municipal Bankruptcy Act. The Justices also struck down a New York minimum wage law. In most of these cases, Chief Justice Hughes voted alongside the Three Musketeers while Justice Roberts voted with the Four Horsemen.

Roosevelt’s allies in Congress were getting impatient. “How much longer,” one senator grumbled, “will we let the Supreme Court sanctify the sweatshop and pervert democratic processes?” Another senator suggested Congress enact a new rule stipulating that only a unanimous vote by the Justices could declare an act of Congress unconstitutional. The Court’s decisions were “arbitrary, unjust, and reactionary,” according to one congressman. Another referred to the Justices as “nine black-robed fates.”

Pro-New Deal newspapers also took swings. “Instead of utilizing their unequaled independence to serve the Constitution, they twist the Constitution to serve their notions,” The Philadelphia Record editorialized. “The Supreme Court’s usurpation of power is the issue of the hour.”

By early 1937, Attorney General Cummings had come up with a creative plan to remake the Court.

Six of the Supreme Court Justices—including all Four Horsemen—were over the age of 70. Cummings drafted a bill that would grant retirement at full pay to any Justice over the age of 70. If a Justice refused to retire within six months of turning 70 (and had already served at least 10 years on the bench), the president would have the authority to add an additional seat to the Court.

Roosevelt warmed to Cummings’ proposal, which provided (flimsy) cover for his true political motive: to pack the Court with New Deal-friendly Justices. Getting the bill through Congress shouldn’t have been difficult: Democrats had a supermajority in both the House and the Senate. If they passed the bill, FDR would be able to appoint six new Justices; and depending on how many of the current Justices refused retirement, the Supreme Court could expand to as many as 15.

Without giving Congressional leaders advance notice, FDR announced the proposal on February 5, 1937, first to Congress and then to the press. Modern complexities, he told Congress, called for

a constant infusion of new blood in the courts, just as it is needed in executive functions of the Government and in private business. A lowered mental or physical vigor leads men to avoid an examination of complicated and changed conditions. Little by little, new facts become blurred through old glasses fitted, as it were, for the needs of another generation; older men, assuming that the scene is the same as it was in the past, cease to explore or inquire into the present or the future.

FDR and Cummings thought focusing on Justices’ age was a clever sleight-of-hand, but it immediately fell flat. For one thing, Cummings himself was 67 and FDR was in notoriously poor health. Their feigned concern about 70-year-old Justices’ “lowered mental and physical vigor” simply didn’t hold water. And with the press, FDR hadn’t bothered to conceal how clever he thought the proposal was. “He seemed to be asking the assembled newspapermen to applaud the perfections of his scheme,” one reporter wrote, “to note its nicely calculated indirections and praise its effectiveness.”

Cummings may have been even worse than FDR at subterfuge: When the Senate Judiciary Committee asked him whether he’d consider the scheme a success if, having expanded the Court to 15 Justices, the Court became divided 8-7 on New Deal cases, Cummings responded: “It would depend upon which side the seven were on and upon which side the eight were.”

The Court-packing bill was met with skepticism and hostility.

Congressmen—even Democrats who supported the New Deal—called it a “subversion of the Judiciary” and “destruction of the democratic process.” The Democratic-controlled Senate Judiciary Committee advised against it. “This bill is an invasion of judicial power such as has never before been attempted in this country,” the committee later warned in a report. One Democratic senator worried that “some future President might, by suddenly enlarging the Supreme Court, suppress free speech, free assembly, and invade other Constitutional guarantees of citizens.” Another Democratic senator told a friend that it was a mistake to assume “that because people of the United States were opposed to big business … that they are in favor of having all of their affairs run by big government.”

The proposal fared no better outside of Congress: Pro-New Deal newspaper The New York World-Telegram called the scheme “too clever, too damned clever,” and a law professor who supported FDR called it “tricky, and perhaps dishonest.” A few prominent lawyers and journalists formed the National Committee to Uphold Constitutional Government, which printed a quarter of a million copies of a pamphlet titled The Assault on the Supreme Court and arranged for a radio talk to be broadcast on 300 stations in which a progressive minister warned that the Court-packing bill was “a surrender to impulses all too much like the action of Hitler in packing the courts of the German Reich.”

Supreme Court Associate Justice Harlan F. Stone—one of the Three Musketeers—also disapproved. “Between ourselves,” he wrote in a letter to a friend, “the recent proposals about the Supreme Court are about the limit. To see it become the football of politics fills me with apprehension.”

About a month after Roosevelt first announced his plan to expand the Court, he tried to make his case to the public in a fireside chat. He described the three branches of government as “a three-horse team provided by the Constitution to the American people so that their field might be plowed.” Two of those horses were pulling in unison, he said. The third—the judiciary—was not. He said:

By bringing into the judicial system a steady and continuing stream of new and younger blood, I hope … to bring to the decision of social and economic problems younger men who have had personal experience and contact with modern facts and circumstances…. This plan will save our national Constitution from hardening of the judicial arteries.

Only weeks later, however, circumstances changed.

On March 29, 1937, the Court handed down a surprise 5-4 decision in West Coast Hotel Company v. Parrish upholding minimum wage laws for women as constitutional. Justice Roberts, who had previously voted with the Four Horsemen to strike down New York’s minimum wage law, this time voted with the Three Musketeers and the Chief Justice.

Suddenly the Court wasn’t the immovable obstacle blocking the New Deal that FDR portrayed it to be—which killed any momentum the Court-packing bill might have had.

People speculated that Justice Roberts had intentionally switched his vote in order to dissuade Roosevelt from his Court-packing scheme. On April 14, 1937, a New York Post columnist wrote, “I’ve been thinking for an explanation of why Justice Roberts switched from the conservatives to the liberals. Is this it?—Maybe he figures that a switch in time’ll save nine.” That line (a play on “a stich in time saves nine”) quickly spread. In May, a Princeton professor wrote to Attorney General Cummings, “Apropos of the recent shift by the Court, have you heard the quip, ‘a switch in time saves nine’?” Cummings replied that he had not heard the line but “[i]t is very apropos.”

The truth, however, is that Justice Roberts didn’t switch his vote at all, much less for political reasons. Months before FDR announced his Court-packing scheme, Roberts was already inclined to uphold the minimum wage law. A vote taken shortly after West Coast Hotel Company oral arguments proves it, as does a memo written by Roberts that was made public after his death by Justice Felix Frankfurter, whom FDR appointed to the Court in 1938. In fact, according to the memo, only a technicality had prevented Roberts from upholding New York’s minimum wage law in the previous case. What seemed like a political switch was actually consistent behavior from Roberts: He decided each case as it came, analyzing the case’s legal merits. Justice Frankfurter called it “one of the most ludicrous illustrations of the power of lazy repetition of uncritical talk that a judge with the character of Roberts should have attributed to him a change of judicial views out of deference to political considerations.”

That the public assumed Roberts’ vote in West Coast Hotel Company was politically motivated shows how much damage FDR’s Court-packing scheme did to the Court’s reputation in the short time the scheme lived.

In pushing to expand the Supreme Court, FDR treated the Court as just another political chamber he could manipulate to enact his agenda. Although Congress and the public resisted Roosevelt’s machinations, their view of Supreme Court Justices was altered: Justices could now be seen as making political, not legal, decisions. In his fireside chat, Roosevelt said Justices should decide “social and economic problems” with the benefit of their “personal experience and contact with modern facts and circumstances”—promoting an image of Supreme Court Justices as political minds who looked outside the legal scope of a case when making decisions.

The Court-packing bill officially died a slow, summer death in the Senate. By then FDR had moved on: In May, Justice Willis Van Devanter—one of the Four Horsemen—announced his resignation. For a moment, FDR was in a pickle: He had long ago promised the first vacant seat on the Court to Senate Majority Leader Joseph Robinson, who was 65 years old. Putting a 65-year-old on the Court immediately after waxing poetic about “younger blood” would have made FDR look like a fool. But again FDR caught a break: Robinson, who’d been working overtime to gather votes for the Court-packing bill, had a heart attack and died. FDR, seeking “a thumping, evangelical New Dealer,” nominated 51-year-old Senator Hugo Black from Alabama instead. Black was a Klansman, but the Senate confirmed him anyway. He served on the Supreme Court until 1971.

By the time FDR died in office in 1945, he had appointed seven of the Court’s nine Justices and elevated Harlan Stone to Chief Justice. Although his Court-packing plan had failed, FDR got what he wanted: a Court full of Justices he’d handpicked to uphold the New Deal.

But he’d also managed to turn the Supreme Court into “the football of politics,” as Justice Stone put it—and in so doing, he permanently changed the way some people viewed the role of Supreme Court Justices.

That’s precisely what worries the legal community now, as President Biden’s allies openly urge him to pack the Court.

Last spring President Biden formed a bipartisan commission to explore potential reforms to the Supreme Court, including expanding it. The commission’s report didn’t take a position either way on Court-packing: It included arguments for and against. But it also included this memorable quote from a 1937 Senate Judiciary Committee report about FDR’s Court-packing bill:

Let us now set a salutary precedent that will never be violated. Let us, of the Seventy-fifth Congress, in words that will never be disregarded by any succeeding Congress, declare that we would rather have an independent Court, a fearless Court, a Court that will dare to announce its honest opinions in what it believes to be the defense of liberties of the people, than a Court that, out of fear or sense of obligation to the appointing power or factional passion, approves any measure we may enact.

The senators who wrote that—all long-dead now—prioritized the independence of the Supreme Court over their own political agendas. May today’s politicians learn to do the same.