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A President Tries to Pack a Court-
In early 1937 President Roosevelt made what turned out to be the biggest political blunder of his career, and yet
it was a blunder that would have fortuitous, even pivotal, importance for the fate of Social Security.
Federal judges are appointed for life. The Supreme Court of the 1930s was the most elderly in the history of the
Republic, with an average age of over 71. President Roosevelt would derisively refer to them as "those nine
old men." Actually, he only had four of them in mind. The Court was split down the middle in political terms.
On the liberal side were three justices sympathetic to the New Deal programs (Brandeis, Stone and Cardozo); on
the conservative side were four justices who voted against everything the Congress and the Administration tried
to do (McReynolds, Butler, Van Devanter and Sutherland). In the middle were Chief Justice Charles Evans Hughes
and Justice Owen Roberts, who were often "swing votes" on many issues. In the spring of 1935 Justice
Roberts joined with the conservatives to invalidate the Railroad Retirement Act. In May, the Court threw out a
centerpiece of the New Deal, the National Industrial Recovery Act. In January 1936 a passionately split Court ruled
the Agricultural Adjustment Act unconstitutional. In another case from 1936 the Court ruled New York state's minimum
wage law unconstitutional. The upshot was that major social and political reforms, including social insurance programs,
appeared headed for defeat. This despite the obvious will of the electorate who returned Roosevelt to office in
1936 with the largest landslide in history.
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The 1937 Supreme Court. National Archives. |
President Roosevelt's response to all of this was stunning and unexpected. On February 5, 1937 he sent
a special message to Congress proposing legislation granting the President new powers to add additional judges
to all federal courts whenever there were sitting judges age 70 or older who refused to retire. Couching his argument
as a reform to help relieve the workload burden on the courts, President Roosevelt's unusually blunt language made
it clear what he really had in mind: "A part of the problem of obtaining a sufficient number of judges
to dispose of cases is the capacity of the judges themselves. This brings forward the question of aged or infirm
judges--a subject of delicacy and yet one which requires frank discussion. In exceptional cases, of course, judges,
like other men, retain to an advanced age full mental and physical vigor. Those not so fortunate are often unable
to perceive their own infirmities. . . A lower 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." 3
The practical effect of this proposal was that the President would get to appoint six new Justices to the Supreme
Court (and 44 judges to lower federal courts) thus instantly tipping the political balance on the Court dramatically
in his favor. The debate on this proposal was heated, widespread and over in six months. The President would be
decisively rebuffed, his reputation in history tarnished for all time. But the Court, it seemed, got the message
and suddenly shifted its course. Beginning with a set of decisions in March, April and May 1937 (including the
Social Security Act cases) the Court would sustain a series of New Deal legislation, producing a "constitutional
revolution in the age of Roosevelt." 4
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| One of the many cartoons of the period that were critical of FDR's court-packing plan. FDR Library. |
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A Switch in Time |
| Despite the intense controversy the court-packing plan provoked, and the divided loyalties it produced even among the President's supporters, the legislation appeared headed for passage, when the Court itself made a sudden shift that took the wind out of the President's sails. In March 1937, in a pivotal case, Justice Roberts unexpectedly changed his allegiance from the conservatives to the liberals, shifting the balance on the Court from 5-4 against to 5-4 in favor of most New Deal legislation. In the March case Justice Roberts voted to uphold a minimum wage law in Washington state just like the one he had earlier found to be unconstitutional in New York state. Two weeks later he voted to uphold the National Labor Relations Act, and in May he voted to uphold the Social Security Act. This sudden change in the Court's center of gravity meant that the pressure on the New Deal's supporters lessened and they felt free to oppose the President's plan. This sudden switch by Justice Roberts was forever after referred to as "the switch in time that saved nine." |
