FDR & The Supreem Court

Is this an approach the Dems will have to take after the 2008 election?

In November 1936, Roosevelt won re-election by carrying all but two states. Although FDR did not make the Supreme Court an issue in his campaign, he nevertheless considered his landslide election as a mandate for federal court reform. He knew he had to act quickly since many New Deal laws passed during his first term were headed for the Supreme Court(& their Conservative Majority).

Working quietly, Attorney General Cummings drafted a bill that, on the surface, appeared to streamline the entire federal court system. But the real target was the Supreme Court. Cummings proposed that Congress pass a law granting the president the power to nominate an additional judge for every federal judge who, having served a minimum of 10 years, did not resign or retire within six months after reaching age 70. In effect, this would enable FDR to add up to six more justices to the Supreme Court as well as nearly 50 more lower-court federal judges. Of course, the Senate would still have to approve his nominations.

The "Court-Packing" Fight

Much to the surprise of President Roosevelt, his court-reform plan came under serious attack. The press soon began to refer to it as FDR's "court-packing" scheme. The president was compared with Hitler (GWB?) in seeking dictatorial powers. Even some liberal New Deal Democrats in Congress voiced their reservations.

Supporters of the bill decided to concentrate their efforts in the Senate. Appearing before the Senate Judiciary Committee, Attorney General Cummings presented the administration's case. "The proposed increase in the number of judges is not for the purpose of enslaving the judiciary," he said. "The purpose is to rejuvenate the judicial machinery, to speed justice, and to give to the courts men of fresh outlook who will refrain from infringing upon the powers of Congress."

But most of those testifying before the Judiciary Committee rejected FDR's plan as little more than a cover to pack the Supreme Court with liberal justices. The plan, they claimed, would make the court more political,(like where we are today?) thus undermining its independence. Critics argued that since there were no age regulations placed on the president or members of Congress, there should be none on federal judges either. Others claimed that it was not the Supreme Court justices who were overturning Roosevelt's New Deal laws, but the Constitution itself.(so today GWB modifys the meaning of the Constitution to fit his desires?)

"The Switch in Time"

In the midst of the "court-packing" fight, a series of unexpected events occurred that finally sank FDR's court-reform bill. On March 29, 1937, the Supreme Court reversed itself and upheld a state minimum-wage law very similar to laws that the court had previously struck down. This case was decided by another 5–4 vote. But this time the four conservative justices were in the minority. Shortly afterward, the Supreme Court ruled as constitutional both the Social Security Act and the National Labor Relations Act, two key pieces of New Deal legislation. These cases, too, were decided by slim 5–4 majorities. (It's amazing how the threat changed at least one Justices spine.)

As it turned out in the years that followed, the Supreme Court upheld virtually all of FDR's New Deal reforms. Over the span of his remaining three terms in office, Roosevelt got to name a total of eight new justices to the Supreme Court. In the end, he did get to "pack" the court with men of his choosing. This "Roosevelt Court" took a more liberal direction in interpreting the Constitution, at least for a while. But the question remains, even today, whether the Supreme Court can truly be an independent body completely separated from political influences.

From the CFR: Constitutional Rights Foundation