Roosevelt would have been wise to be patient

gavel on U.S. flag

In 1932, the social reform governor of New York, Franklin D. Roosevelt, was elected president of the United States in a landslide victory. Roosevelt’s New Deal supporters passed through Congress measures of reform that included the banking system, security markets, the National Industrial Recovery Act and the Wagner Act.

During his first term, Roosevelt was able to get through Congress virtually any measure he requested from the Democratic-controlled Senate and House of Representatives. But if the legislative and executive branches were in harmony, there was a fear on the part of the New Dealers that the Supreme Court might not have gotten the message.

Conservative court

Seven members of the court had been chosen by Republican presidents, and only two by an earlier Democratic president. Because it usually takes at least a year or more from the time a lawsuit is filed in the court until it reaches the Supreme Court, no New Deal enactments reached the Supreme Court in the first two years of the Roosevelt administration.

In the spring of 1935, the Supreme Court began to receive lawsuits dealing with legislation that the Roosevelt administration had engineered to fix the Great Depression. On a day known as Black Monday, May 27, 1935, three cases were decided by the court.

The nine judges voted unanimously that the National Industrial Recovery Act was unconstitutional. The court found the language of the law was so vague and general that the executive branch of the government could make laws themselves.

Two other cases were also sent to the “deep six” by a vote of 8-1 and 7-2. The New Dealers were devastated and not singing their theme song — Happy Days Are Here Again.

For a period of 18 months, the Roosevelt New Dealers criticized the Supreme Court, and the court continued to strike down New Deal legislation.

In January 1936, the Agricultural Act was declared unconstitutional by a vote of 6-3. Roosevelt in his fireside radio program told the American people that the court was making decisions on precedent set in “horse and buggy days.”

Second term

In November 1936, Roosevelt was returned to office for a second term by one of the widest election margins in history. Alfred M. Landon, the Republican candidate, received the electoral votes of only Maine and Vermont and a popular vote of roughly 9 million compared to 16 million for Roosevelt.

The Democrats made little of the court issue in the campaign, but a few days after the inauguration, Roosevelt proclaimed to the country that he was not going to wait for vacancies on the court to occur; he was going to reorganize the Supreme Court.

A number of considerations led to Roosevelt’s decision to place judicial reorganization ahead of social legislation. Much of the legislation of the early New Deal program had been hastily drawn up and was constitutionally weak.

The Supreme Court, as then constructed, was not noted for a liberal view of federal power, but the president and his followers had hoped the court would make allowances for the emergency atmosphere when considering New Deal legislation. The court, which was sitting in judgment on these New Deal measures, consisted of pre-New Deal days.

Six of the justices were more than 70 years of age and of these six, five were fairly consistently conservative and considered private property sacred and laissez-faire. There were three judges who made up the liberal wing of the court. Some of these judges, inherited from earlier administrations, were determined to retain their seats until Roosevelt was out of office.

Even before the election of 1936, Roosevelt had decided to take some action to protect his reform program. The Oval Office gang believed it was an opportune time to act, but disagreement surfaced on the method.

A constitutional amendment was too slow, and the real problem was one of attempting to foil the conservative block by an out-flanking strategy.

Poorly conceived attempt

The administration bill, which was poorly conceived, was the handiwork of Attorney General Homer S. Cummings and provided that whenever a federal judge failed to retire at 70, the president could appoint a new judge to that bench. The number of new appointments was limited to six to the Supreme Court and 44 to the lower federal courts.

The chief attraction to this plan was that it emphasized efficiency in the judicial process rather than politics and personalities. The president embellished his presentation of the bill with an unsubstantiated reference to the “crowded docket of the federal courts.” Opposition to the bill developed immediately.

Chief Justice Hughes provided ample evidence that the court was not behind in its casework. The president’s oblique slap at men over 70 was resented by many in Congress.

The administration’s clumsy political tactic in Congress of keeping the party leaders ignorant of the bill until the last minute did little to keep the labor-farm coalition support. Finally, the counterattack of the court by decisions favorable to the New Deal and the political activities of Chief Justice Hughes undermined Roosevelt’s program.

In March 1937, the court upheld the Washington state minimum wage law by a 5-4 vote. In April, the Wagner Act (National Labor Relations Act) was upheld by the same margin. On May 24, 1937, the court upheld the much-needed Social Security Act, and Justice Van Devanter announced his plan to retire, thus giving Roosevelt an opportunity to appoint a liberal to the court.

When Senate Majority Leader Joseph Robinson, of Arkansas, who was guiding the bill through Congress, died suddenly, Roosevelt realized the hopelessness of the situation. He was also acutely aware of the dissension with the Democratic Party over the bill.

The Roosevelt Supreme Court brawl illustrated two outstanding features of the American constitutional system. The public did not want even a very popular president to tamper with the Supreme Court and the difficulties involved when one branch of government attempts to dominate another.

The defeat of the court-packing plan had long-term political consequences for Roosevelt, the Democratic Party and the nation. Roosevelt, within four years, was able to name six new justices to the nine-man court.

If he had exercised a little patience, he could have shaped the character of the Supreme Court without attempting to restructure the institution itself. That’s your history!


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Professor Emeritus Hugh Earnhart had a 32-year career in the history department at Youngstown State University, where he specialized in the Civil War and the South. Send suggestions, comments or questions to Hugh Earnhart in care of Farm and Dairy, P.O. Box 38, Salem, OH 44460-0038; or via email to:



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