Fist Of History

Packing the Court – the Judical Procedures Reform Bill of 1937

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So it is 1936 and you are President Roosevelt, you just won an incredible ass-kicking of a re-election campaign, the country is slowly lumbering towards something resembling economic recovery, but you want to do more.  Beyond that, several critical pieces of legislature that make up part of your legislative reform efforts, commonly known as the New Deal, were up for review by the Supreme Court only a year ago and they got significantly spanked, specifically the Court sharply limits your ability to remove people from appointed offices that disagree with you, shuts down a key piece of bankruptcy protection law that shields debtors from banks, and crushed your National Industrial Recovery Act.  To add further insult to injury all three rulings were read on the same day, 27 May 1935, to increase the public attention and humiliation factor.

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Now the first option would be to accept these setbacks with quiet dignity and attempt a new method of achieving the same legislative ends.  The problem with that is it would take time, the cooperation of Congress, and would still face the same Supreme Court that was hostile to your earlier efforts.  Alternatively you could take a new approach and attempt to exercise the power that Congress has over the Supreme Court, specifically its power to shape the Supreme Court, including defining how large it was.  Hence Roosevelt’s 1937 Judicial Procedures Reform Act, which at its heart allowed the President of the United States to appoint additional judges to the Supreme Court, subject to Congressional approval, beyond the current nine, with a maximum allowable addition of six extra judges.  However there was a caveat, new judges could only be appointed at the rate of one per judge who was older then 70 years and six months of age – i.e. for every “old fuddy judge who doesn’t like the New Deal” you can appoint a new shiny younger judge who will probably be open to the new ideas of the New Deal.

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Roosevelt attempted to win the American public to his legislative reform ideas with a fireside chat on 9 March 1937 and Congress took up the legislation for debate, however from the start his idea was not warmly received.  Republican opponents referred to it as an effort to “pack the Court” and key members of the Democratic party, both party bosses and members of Congress, found the bill a distasteful effort by the President to exert undue influence on the Supreme Court.  It was killed in the House, in Committee, and also failed in the Senate due to vigorous opposition from the Republicans.

In the end, the effort failed, however later in 1937 the Court was more open to New Deal legislation and, in general, the Supreme Court’s justices stated that most of the problems with the New Deal legislation they dealt with was due to it being poorly written, and far too broad, rather than conceptual issues.

For those curious about applicability, if that bill was in force today the President would be able to appoint four additional justices, if those slots had not already been filled.

Sources:  Wikipedia article on the Judicial Procedure Reform Act of 1937

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