Judicial Procedures Reform Bill of 1937
The Judicial Procedures Reform Bill of 1937, frequently called the "court-packing plan", was a legislative initiative proposed by U.S. President Franklin D. Roosevelt to add more justices to the U.S. Supreme Court in order to obtain favorable rulings regarding New Deal legislation that the Court had ruled unconstitutional. The central provision of the bill would have granted the president power to appoint an additional justice to the U.S. Supreme Court, up to a maximum of six, for every member of the court over the age of 70 years.
In the Judiciary Act of 1869, Congress had established that the Supreme Court would consist of the chief justice and eight associate justices. During Roosevelt's first term, the Supreme Court struck down several New Deal measures as being unconstitutional. Roosevelt sought to reverse this by changing the makeup of the court through the appointment of new additional justices who he hoped would rule that his legislative initiatives did not exceed the constitutional authority of the government. Since the U.S. Constitution does not define the Supreme Court's size, Roosevelt believed it was within the power of Congress to change it. Members of both parties viewed the legislation as an attempt to stack the court, and many Democrats, including Vice President John Nance Garner, opposed it. The bill came to be known as Roosevelt's "court-packing plan", a phrase coined by Edward Rumely.
In November 1936, Roosevelt won a sweeping re-election victory. In the months following, he proposed to reorganize the federal judiciary by adding a new justice each time a justice reached age 70 and failed to retire. The legislation was unveiled on February 5, 1937, and was the subject of Roosevelt's ninth fireside chat on March 9, 1937. He asked, "Can it be said that full justice is achieved when a court is forced by the sheer necessity of its business to decline, without even an explanation, to hear 87% of the cases presented by private litigants?" Publicly denying the president's statement, Chief Justice Charles Evans Hughes reported, "There is no congestion of cases on our calendar. When we rose March 15 we had heard arguments in cases in which cert has been granted only four weeks before. This gratifying situation has obtained for several years". Three weeks after the radio address, the Supreme Court published an opinion upholding a Washington state minimum wage law in West Coast Hotel Co. v. Parrish. The 5–4 ruling was the result of the apparently sudden jurisprudential shift by Associate Justice Owen Roberts, who joined with the wing of the bench supportive to the New Deal legislation. Since Roberts had previously ruled against most New Deal legislation, his support here was seen as a result of the political pressure the president was exerting on the court. Some interpreted Roberts' reversal as an effort to maintain the Court's judicial independence by alleviating the political pressure to create a court more friendly to the New Deal. This reversal came to be known as "the switch in time that saved nine"; however, recent legal-historical scholarship has called that narrative into question as Roberts' decision and vote in the Parrish case predated both the public announcement and introduction of the 1937 bill.
Roosevelt's legislative initiative ultimately failed. Henry F. Ashurst, the Democratic chair of the Senate Judiciary Committee, held up the bill by delaying hearings in the committee, saying, "No haste, no hurry, no waste, no worry—that is the motto of this committee." As a result of his delaying efforts, the bill was held in committee for 165 days, and opponents of the bill credited Ashurst as instrumental in its defeat. The bill was further undermined by the untimely death of its chief advocate in the U.S. Senate, Senate Majority Leader Joseph T. Robinson. Other reasons for its failure included members of Roosevelt's own Democratic Party believing the bill to be unconstitutional, with the Judiciary Committee ultimately releasing a scathing report calling it "a needless, futile and utterly dangerous abandonment of constitutional principle... without precedent or justification". Contemporary observers broadly viewed Roosevelt's initiative as political maneuvering. Its failure exposed the limits of Roosevelt's abilities to push forward legislation through direct public appeal. Public perception of his efforts here was in stark contrast to the reception of his legislative efforts during his first term. Roosevelt ultimately prevailed in establishing a majority on the court friendly to his New Deal legislation, though some scholars view Roosevelt's victory as pyrrhic. Also, during the political fight over Roosevelt's proposed reforms to the Court, it started to uphold various New Deal and other policies. On March 29, 1937, it reversed its previous stance on the constitutionality of state minimum-wage laws for women, while also upholding the Railroad Labor Act, a revised Frazier-Lemke Farm Mortgage Moratorium Act and the Wagner Labor Relations Act.
Background
New Deal
Following the Wall Street Crash of 1929 and the onset of the Great Depression, Franklin Roosevelt won the 1932 presidential election on a promise to give America a "New Deal" to promote national economic recovery. The 1932 election also saw a new Democratic majority sweep into both houses of Congress, giving Roosevelt legislative support for his reform platform. Both Roosevelt and the 73rd Congress called for greater governmental involvement in the economy as a way to end the depression. During the president's first term, a series of successful challenges to various New Deal programs were launched in federal courts. It soon became clear that the overall constitutionality of much of the New Deal legislation, especially that which extended the power of the federal government, would be decided by the Supreme Court.File:Oliver Wendell Holmes Jr circa 1930-edit.jpg|thumb|right|Associate Justice Oliver Wendell Holmes Jr. Holmes's loss of half his pension pay due to New Deal legislation after his 1932 retirement is believed to have dissuaded Justices Van Devanter and Sutherland from departing the bench.
A minor aspect of Roosevelt's New Deal agenda may have itself directly precipitated the showdown between the Roosevelt administration and the Supreme Court. Shortly after Roosevelt's inauguration, Congress passed the Economy Act, a provision of which cut many government salaries, including the pensions of retired Supreme Court justices. Associate Justice Oliver Wendell Holmes Jr., who had retired in 1932, saw his pension halved from $20,000 to $10,000 per year. The cut to their pensions appears to have dissuaded at least two older Justices, Willis Van Devanter and George Sutherland, from retirement. Both would later find many aspects of the New Deal unconstitutional.
Roosevelt's Justice Department
The flurry of new laws in the wake of Roosevelt's first hundred days swamped the Justice Department with more responsibilities than it could manage. Many Justice Department lawyers were ideologically opposed to the New Deal and failed to influence either the drafting or review of much of the White House's New Deal legislation. The ensuing struggle over ideological identity increased the ineffectiveness of the Justice Department. As Interior Secretary Harold Ickes complained, Attorney General Homer Cummings had "simply loaded it with political appointees" at a time when it would be responsible for litigating the flood of cases arising from New Deal legal challenges.Compounding matters, Roosevelt's congenial Solicitor General, James Crawford Biggs, proved to be an ineffective advocate for the legislative initiatives of the New Deal. While Biggs resigned in early 1935, his successor Stanley Forman Reed proved to be little better.
This disarray at the Justice Department meant that the government's lawyers often failed to foster viable test cases and arguments for their defense, subsequently handicapping them before the courts. As Chief Justice Charles Evans Hughes would later note, it was because much of the New Deal legislation was so poorly drafted and defended that the court did not uphold it.
Jurisprudential context
Popular understanding of the Hughes Court, which has some scholarly support, has typically cast it as divided between a conservative and liberal faction, with two critical swing votes. The conservative Justices Pierce Butler, James Clark McReynolds, George Sutherland and Willis Van Devanter were known as "The Four Horsemen". Opposed to them were the liberal Justices Louis Brandeis, Benjamin Cardozo and Harlan Fiske Stone, dubbed "The Three Musketeers". Chief Justice Charles Evans Hughes and Justice Owen Roberts were regarded as the swing votes on the court. Some recent scholarship has eschewed these labels since they suggest more legislative, as opposed to judicial, differences. While it is true that many rulings of the 1930s Supreme Court were deeply divided, with four justices on each side and Justice Roberts as the typical swing vote, the ideological divide this represented was linked to a larger debate in U.S. jurisprudence regarding the role of the judiciary, the meaning of the Constitution, and the respective rights and prerogatives of the different branches of government in shaping the judicial outlook of the Court. At the same time, however, the perception of a conservative/liberal divide does reflect the ideological leanings of the justices themselves. As William Leuchtenburg has observed:Whatever the political differences among the justices, the clash over the constitutionality of the New Deal initiatives was tied to clearly divergent legal philosophies which were gradually coming into competition with each other: legal formalism and legal realism. During the period c. 1900 – c. 1920, the formalist and realist camps clashed over the nature and legitimacy of judicial authority in common law, given the lack of a central, governing authority in those legal fields other than the precedent established by case law—i.e. the aggregate of earlier judicial decisions.
This debate spilled over into the realm of constitutional law. Realist legal scholars and judges argued that the constitution should be interpreted flexibly and judges should not use the Constitution to impede legislative experimentation. One of the most famous proponents of this concept, known as the Living Constitution, was U.S. Supreme Court justice Oliver Wendell Holmes Jr., who said in Missouri v. Holland the "case before us must be considered in the light of our whole experience and not merely in that of what was said a hundred years ago". The conflict between formalists and realists implicated a changing but still-persistent view of constitutional jurisprudence which viewed the U.S. Constitution as a static, universal, and general document not designed to change over time. Under this judicial philosophy, case resolution required a simple restatement of the applicable principles which were then extended to a case's facts in order to resolve the controversy. This earlier judicial attitude came into direct conflict with the legislative reach of much of Roosevelt's New Deal legislation. Examples of these judicial principles include:
- the early-American fear of centralized authority which necessitated an unequivocal distinction between national powers and reserved state powers;
- the clear delineation between public and private spheres of commercial activity susceptible to legislative regulation; and
- the corresponding separation of public and private contractual interactions based upon "free labor" ideology and Lockean property rights.