FDR Had an Insidious Plan for When Court-Packing Failed - Biden May Be Using it Right Now


With relatively little support among moderate Democrats in Congress, the party’s effort to expand the size of the Supreme Court is well-nigh doomed to fail.

But the wheels of American history illustrate that merely rejecting an idea does not signify its defeat because, in some cases, what drives support for a political proposition is not its purpose but the motivations behind it.

For many Democratic lawmakers today, that could not be more true. Of course, their bitterness is misplaced. But it is likely that those spearheading support for today’s “reforms” to the Supreme Court have been seduced by the temptations of power.

For one, their factional gripe should not be directed toward the Supreme Court, institutionally or in terms of individual justices. Their whinging should be fixated on their Republican colleagues in Congress, with whom they share legislative power.

This partisan anger lies predominantly in the ways by which justices have been nominated and confirmed in the Senate.

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“Republicans stole the Court’s majority,” Sen. Ed Markey of Massachusetts said in a statement April 15 after introducing the Judiciary Act of 2021, which is aptly named to invoke historical sentiment. “Of all that damage Donald Trump did to our Constitution, this stands as one of his greatest travesties.

“Senate Republicans have politicized the Supreme Court, undermined its legitimacy, and threatened the rights of millions of Americans, especially people of color, women, and our immigrant communities.

“This legislation will restore the Court’s balance and public standing and begin to repair the damage done to our judiciary and democracy, and we should abolish the filibuster to ensure we can pass it.”

While his comments also could be read as a threat against judicial independence, that is a conversation for another day. His motivation is political power.

Do you support modern-day efforts to pack the court?

Markey and others know that there is no quick-fix solution in the realm of statecraft.

Constructing general institutional reform, which is essential to the longevity of a free society, requires consensus, coalition-building and time. But such an endeavor is often difficult and resource-consuming.

For American political history, this is not new — time and again, political power grabs have been a key part of this nation’s development. Even in the early days of the republic, when President John Adams commissioned his “midnight appointments,” public officials understood that it is easier to circumvent or change norms than to abide by them.

Similar to Adams, President Franklin D. Roosevelt also launched an initiative to reorganize the structure of the federal judiciary — or more colloquially, pack the court.

Since Yesterday

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Long after the crash of the Big Bull market in 1929 — which brought American business and industrial growth to a multiyear standstill — Roosevelt defeated the Republican incumbent president, Herbert Hoover, in an electoral landslide of 472-59 votes.

Thereafter, Roosevelt would pursue a number of executive directives and a list of policy reforms. The single most significant piece of New Deal legislation was the National Industrial Recovery Act.

The NIRA was designed to end cut-throat competitive practices in business and industry, raise prices and retract production while also adjusting labor markets, the workweek and wages. To accomplish this feat, the act created a commission composed of managers, laborers and public citizens to establish a code for business and industry from which recovery aid could be distributed.

The ambitious endeavor, however, was ruled unconstitutional by the Supreme Court on May 27, 1935, according to “The Supreme Court: How It Was, How It Is” by former Chief Justice William H. Rehnquist.

The court held that the act unconstitutionally delegated authority to a bureaucratic official and overstepped congressional authority by regulating local or intrastate business affairs.

While this decision was not the only ruling to invalidate a New Deal reform, this holding seemingly sunk the New Deal ship.

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A Depression-Era Power Grab

Four days after the court’s ruling, Roosevelt delivered his response. With a cloud of cigarette smoke filling the Executive Office and the press standing in attention, Roosevelt declared the decision “was more important than any decision probably since the Dred Scott case,” historian Frederick Lewis Allen wrote in his 1939 book “Since Yesterday: The 1930s in America.”

“Does this decision mean that the United States Government has no control over any economic problem?” Embittered and frustrated, Roosevelt would wait for two years, through another successful election cycle, to devise a plan to reckon with his black-robed counterparts on the high court.

His plan — which came from a 1913 Justice Department research proposal — was to place a new justice on the court for every justice over the age of 70, giving the White House three immediate appointments and precluding the plan from the arduous processes of constitutional amending.

It was a radical proposition.

During this time, Roosevelt did not share any details with members of Congress or the public. After springing the idea on Democratic leadership in a meeting on Feb. 5, 1937, he launched his attack, calling into question the mental capacity of justices on the Supreme Court, according to “Since Yesterday.”

“The personnel of the federal judiciary is insufficient to meet the business before them,” the president said. “In many instances,” he continued, judges continue on the bench “far beyond their years of physical or mental capacity.”

“A constant and systematic addition of younger blood will vitalize the courts and better equip them to recognize and apply the essential concepts of justice in the light of the needs of the facts of an ever-changing world.”

In short, this argument swayed neither congressional nor public opinion in favor of his proposal. Many in Congress rebuked the blase attitude with which the president acted, with one lawmaker noting, “Boys, here’s where I cash my chips in.”

As the plan faltered, Roosevelt pursued a different approach. Keeping the backbone of his proposal in place, he instead invoked his democratic prerogative to defend the interests and needs of the “ill-nourished, ill-clad, ill-housed,” according to the account in “American Constitutional Interpretation” by Walter F. Murphy, James E. Fleming and Sotirios A. Barber.

The only way to meet these needs, he argued, was to modernize the court with fresh, young eyes.

“I will appoint justices who will not undertake to override the judgement of the Congress on legislative policy,” the president said during a fireside chat.

“I will appoint justices who will act as justices and not as legislators — if the appointment of such justices can be called ‘packing the court’ — then I say that I, and with me the vast majority of the American people, favor doing just that thing — now. …

“Our difficulty with the Court today rises not from the Court as an institution but from human beings within it. But we cannot yield our constitutional destiny to the personal judgment of a few men who, being fearful of the future, would deny us the necessary means of dealing with the present.

“This plan of mine is no attack on the Court; it seeks to restore the Court to its rightful and historic place in our system of constitutional government and to have it resume its high task of building anew on the Constitution ‘a system of living law.’”

On one level, Roosevelt was making a departmentalist argument — an argument in favor of exerting executive power on another branch of government during the moments of a constitutional impasse. In this way, he believed he was declaring his executive prerogative.

But practically, on another level, Roosevelt was simply trying to adjust the foundations. His motivations were political, and he wanted the power to enact his program.

Oddly enough, however, he lost the battle but won the war. As his court-packing plan crashed in a blaze like that of the Hindenburg, the Supreme Court reversed in its bulwark character.

The court no longer struck down New Deal reforms but upheld a string of acts that regulated wages, hours and interstate commerce. Hawks at first, the court’s justices now struck a dovish tone. 

As Allen noted, “The offensive failed. In friendships within Congress, in prestige within and without Congress, the President had suffered. In this sense the campaign over the Supreme Court had been for him a costly defeat.”

For lawmakers who believe it is necessary to reform society from the top down today, the wheels of history may encourage one to wait, be patient and allow the processes of popular government to play out.

For modern American minds, it is imperative to acknowledge that most politicians are not high-minded philosophers or good-hearted public doers who truly value the art of government.

Instead, they desire control and power, casting aside the rights and liberties of people.

Past and present alike, public officials will vie for power to advance their interests.

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Brett Kershaw is an associate staff writer for The Western Journal. A graduate of Virginia Tech with bachelor of arts degrees in political science and history, he is a published author who often studies political philosophy and political history.
Brett Kershaw is an associate staff writer for The Western Journal. A graduate of Virginia Tech with bachelor of arts degrees in political science and history, he is a published author who often studies political philosophy and political history.