A Switch in Time Saves Nine

FDR's court-packing plan and the temptations of executive power

Damon W. Root

On February 5, 1937, President Franklin Delano Roosevelt submitted to Congress a sweeping and controversial proposal to reorganize the federal judiciary. Dubbed the "court-packing" plan by its opponents, the bill would have allowed Roosevelt to appoint one new judge to match every sitting judge that had served at least 10 years and hadn't retired or resigned within six months of turning 70. Under the plan, FDR could add as many as 44 new federal judges and, most importantly, up to six new Supreme Court justices.

"A lower mental or physical vigor leads men to avoid an examination of complicated and changed conditions," FDR argued. "Little by little, new facts become blurred through old glasses fitted, as it were, for the needs of another generation." To put it another way, the Court's conservatives, who were committed to such outdated "horse and buggy" notions as limited constitutional government and the protection of both economic and political liberty, kept getting in the New Deal's way.

In 1935, for example, in Schechter Poultry Corp. v. United States, a unanimous Court ruled that the National Recovery Administration's "codes of fair competition" represented both an unconstitutional delegation of legislative authority to the executive and an illegally broad definition of interstate commerce. In United States v. Butler (1936), a 6-3 Court struck down the Agricultural Adjustment Act, which was designed to inflate farm prices by reducing production. (It raised the price of food, in other words, while millions went hungry during the Great Depression.) And in Morehead v. New York ex rel. Tipaldo (1936), a 5-4 Court nullified New York's minimum wage law as a violation of the 14th Amendment right to liberty of contract.

For Roosevelt, who was sweepingly reelected in 1936, enough was enough. As the historian William Leuchtenburg put it, the court-packing scheme "bore the mark of a sovereign who after suffering many provocations had just received a new confirmation of power." But even the sovereign doesn't always get what he wants. Most significantly, the court-packing plan met fierce opposition from FDR's own party, particularly from Sen. Burton K. Wheeler (D-Montana), a fiery progressive who declared, "Every despot has usurped the power of the legislative and judicial branches in the name of the necessity for haste to promote the general welfare of the masses—and then proceeded to reduce them to servitude." The Senate rejected Roosevelt's court-packing plan by a vote of 70-20. (Though the plan is widely credited with influencing swing vote Justice Owen Roberts, whose newfound support for the New Deal in 1937 was called the "switch in time that saved nine.")

It's a remarkable chapter in American history, one that has forced even FDR's most flattering biographers to acknowledge his dictatorial impatience with the Constitution. The latest to do so is journalist Burt Solomon, whose breezy and cliché-ridden (but wonderfully named) new book, FDR v. The Constitution, argues that while the Supreme Court was wrong to defend the "injustices of Darwinian commerce," FDR went too far in his attempt to subvert the constitutional balance. Besides, by the time he died in 1945, FDR had "packed" the Court with eight sympathetic justices who upheld one New Deal law after another.

While Solomon is a compelling writer whose book moves at a brisk pace, his tendency to misrepresent the views of those he disagrees with calls the whole enterprise into question. Consider his treatment of the great classical liberal Justice George Sutherland, one of the Court's so-called Four Horsemen, so named for their frequent votes against New Deal legislation. Sutherland, Solomon writes, "viewed the world in black and white, as if the nineteenth century still lived." But that hardly explains Sutherland's outspoken support for women's rights. As a Republican Senator from Utah, he introduced legislation that led to the 19th Amendment. Nor does it explain Sutherland's majority opinion in Powell v. Alabama (1932), which extended the right to counsel to the so-called Scottsboro boys, a group of black youths convicted of raping two white women in an absolute sham of a trial. Sutherland's commitment to individualism led him to these positions just as it led him to oppose much of the New Deal, a principled stance that Solomon is either unwilling or unable to recognize.

Furthermore, although Solomon clearly approves of FDR's desire to create a liberal Court "that pushed the nation forward instead of holding it back," he has little to say about the Roosevelt Court's most notorious decision, Korematsu v. United States (1944), where FDR-appointed Justices Hugo Black, Stanley Reed, Felix Frankfurter, William O. Douglas, and Wiley B. Rutledge (along with Calvin Coolidge-appointee Justice Harlan Fiske Stone) voted to uphold Roosevelt's wartime internment of Japanese-Americans. It's telling that Solomon goes out of his way to paint Sutherland as dangerously retrograde, but then ignores FDR's most odious legal legacy and the liberal justices who let it happen.

Today, given the sweeping executive powers that President Barack Obama will have at his disposal, as well as the increasing calls for a new New Deal, the lessons of FDR's court-packing plan remain as relevant as ever. Just don't expect to learn them from reading FDR v. The Constitution.