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Franklin Delano Roosevelt

Fdr's Court Packing Plan

A conservative bloc of judges emerged on the U.S Supreme Court during the 1920s. Their conservatism was marked by a restrictive view of the federal government's power to enact a certain class of regulations falling under the heading of "administrative law." Federal ADMINISTRATIVE LAW is an area of law comprised of orders, rules, and regulations that are promulgated by EXECUTIVE BRANCH agencies that have been delegated quasi-lawmaking power by Congress. Justices PIERCE BUTLER, JAMES MCREYNOLDS, GEORGE SUTHERLAND, and WILLIS VAN DEVANTER denied that the federal Constitution gave Congress the power to delegate its lawmaking function, arguing that Article II of the Constitution expressly limited the executive branch to a law enforcement role. By the advent of the 1930s, Butler, McReynolds, Sutherland, and Van Devanter had become known as the "Four Horseman" because they consistently voted to strike down every federal law that involved any congressional delegation of lawmaking power to the executive branch.

The Four Horsemen were usually joined by Justice OWEN ROBERTS and Chief Justice CHARLES HUGHES, two conservatives of a more moderate and centrist temperament. Pitted against the conservative block was the so-called "liberal wing" of the Court, comprised of Justices BENJAMIN CARDOZO, LOUIS BRANDEIS, and HARLAN STONE. The Court's composition presented a potential problem for Democrat presidential candidate Franklin Delano Roosevelt (FDR), who had promised voters a "New Deal" during the 1932 election. After FDR took the oath of office, it became clear that his NEW DEAL entailed the creation of a vast federal regulatory bureaucracy designed to stimulate the U.S. economy and pull it out of the depression.

The potential problem FDR faced transformed into an immediate crisis during 1935, when the Supreme Court issued a series of decisions that struck blows at the heart of the New Deal. First, the Court struck down the Frazier-Lemke Act, a law that provided mortgage relief to farmers. Louisville Joint Stock Land Bank v. Radford, 295 U.S. 555, 55 S.Ct. 854, 79 L.Ed. 1593 (U.S. 1935). Next the Court upheld a provision of the Federal Trade Commission Act that prohibited the president from replacing a commissioner except for cause, thereby thwarting FDR's attempt to bring the agencies in line with his regulatory policies. Humphrey's Executor v. United States, 295 U.S. 602, 55 S.Ct. 869, 79 L.Ed. 1611 (U.S. 1935). Finally, the Court invalidated the National Industrial Recover Act, which authorized the president to prescribe codes of fair competition to bring about industrial recovery and rehabilitation. The Court said that Congress could not delegate such sweeping lawmaking powers to the executive branch without violating SEPARATION-OF-POWERS principles in the federal constitution. A.L.A. Schechter Poultry Corporation v. United States, 295 U.S. 495, 55 S.Ct. 837, 79 L.Ed. 1570 (U.S 1935).

FDR postponed making an issue over the Court's decisions during the 1936 presidential campaign. But the Court continued invalidating important New Deal programs, including the Agricultural Adjustment Act and the National Bituminous Coal Act. In some of these cases Chief Justice Hughes sided with the three dissenting liberal justices, leaving Justice Roberts as the swing vote. Emboldened by his landslide victory, FDR unveiled what critics called the "Court Packing Plan."

The plan, which FDR announced on February 5, 1937, would have given the president the power to add one justice for every Supreme Court justice over age 70, up to a total of six. The older justices were not able to handle the increasing workload, FDR explained, so the additional justices would improve the Court's efficiency.

Much of the nation saw through FDR's explanation. Newspaper editors, Republicans, southern and moderate Democrats, leaders of the organized bar, and even the three liberals on the Supreme Court condemned the plan as a blatant effort to politicize the Court. Roosevelt, however, remained committed to the plan and continued pushing Congress to enact it. By April the Supreme Court appeared to have received the president's message.

In NLRB V. JONES & LAUGHLIN STEEL CORP., 301 U.S. 1, 30, 57 S.Ct. 615, 621, 81 L.Ed. 893 (1937), the Supreme Court by a 5–4 vote upheld the constitutionality of the NATIONAL LABOR RELATIONS BOARD, a federal regulatory agency that investigates and remedies UNFAIR LABOR PRACTICES. Justice Roberts cast the deciding vote. Thereafter Roberts typically voted to uphold the constitutionality of New Deal legislation that was challenged before the Court. Journalists called Roberts' change of heart "the switch in time that saved nine." Combined with Van Devanter's retirement later that year, which allowed FDR to replace him with a justice more amenable to federal regulatory programs, Roberts' move to the left of the political spectrum doomed the Court Packing Plan, as both Congress and the American people realized that the president had achieved his goal without subverting the Court.

Throughout U.S. history presidents have sought to mold the federal courts in their own political image. On balance presidents have filled the courts with high quality judges possessing strong intellects and fair-minded temperaments. On occasion, however, presidents have also become frustrated with the federal bench, especially the Supreme Court. But never has any president attempted to do what President Roosevelt tried to accomplish through the Court Packing Plan, namely change the rules of the game by which vacancies on the Court are created and filled.

Neither death nor resignation on the Court was giving the president the opportunity to shape the Court in the fashion he desired. By proposing to expand the court to as many as 15 justices, FDR could have wielded influence over the Court's JURISPRUDENCE for the next generation or two. But he could also have compromised the independence of the federal judiciary by turning it into an overtly political branch. Article III of the U.S. Constitution gives federal courts the power to interpret and apply the laws passed by Congress and enforced by the executive branch. Federal judges are given life tenure to insulate them from political pressures. FDR tried to alter that equation with the Court Packing Plan. Although the Supreme Court eventually placed its imprimatur of approval on the New Deal, the Court Packing Plan was defeated in what history has deemed a victory for the independence of the federal judiciary.


McKenna, Marian C. 2002. Franklin Roosevelt and the Great Constitutional War: The Court-Packing Crisis of 1937. New York: Fordham Univ. Press.

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