Fist Of History

Posts Tagged ‘Reform’

Packing the Court – the Judical Procedures Reform Bill of 1937

Monday, April 6th, 2015


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.


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.

roosevelt fireside

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

South Carolina just won’t learn

Wednesday, December 19th, 2012

To begin this is in response to an article posted on Huff Post regarding South Carolina and a bill introduced in the state to nullify the Healthcare Reform Act (Obama Care) – which I find hilarious because it shows that South Carolina just will not give up on the idea that a state has the right to nullify a federal law it dislikes or considers unconstitutional.  In particular the last time this came up was in 1833 with the Nullification Crisis which featured the federal government of the United States and South Carolina coming head-to-head over a tariff bill.  In very short the federal government had followed a protective tariff policy to protect United States manufacturing from European competition.  This in turn hurt many economies in the southern states because they relied on an open world export market for their agricultural products (cotton) which were competitive in part due to very low Southern labor costs (slaves.)  US tariffs to protect manufacturing lead to protective tariffs in other nations against US exports and that hurt South Carolina economically.  So from 1828 to 1832 South Carolina got increasing agitated that these tariff rates were not being lowered, culminating in it passing a Nullification Act declaring that the tariff act was unjust, improper, unconstitutional, and void – oh and also if the US government attempted to use force to collect the tariffs then South Carolina would secede from the Union.

See the guy at the top of this post?  That is Andrew Jackson, a president with a fine legal mind, a delicate understanding of political balancing, and also an incredible urge to not take crap from anyone about anything…ever.  He met this with his own policy – one of pushing a compromise tariff bill through Congress to calm South Carolina down, a message to the people of South Carolina that basically said “you are being stupid, stop it”, a message to Congress and the nation rejecting the idea of Nullification as a concept, and also the Force Bill.  The Force Bill was an act to Congress asking for approval to send in troops if South Carolina didn’t calm the hell down.  Despite steamy rhetoric from South Carolina about “the filthy footsteps of invaders” calm reigned supreme in the end and the matter dropped, although Nullification was seen as a dead letter concept by most legal scholars.  (As it also was after other things like the McCulloch v. Maryland ruling of 1819 – really short version – US Congress sets up a national bank, Maryland puts a special tax on it to drive it out of business, Supreme Court says a) Congress can do things like that, just and necessary clause and b) Maryland stop being stupid.)  But now I’d like to introduce you to another bad ass President that also dealt with southern states refusing to abide by federal laws:

That is Dwight D. Eisenhower – 1950s US President, former Supreme Allied Commander, and total bad ass on state nullification and defiance.  In 1954 the US Supreme Court ruled in Brown vs the Board of Education that schools had to be integrated and “separate but equal” violated African-American civil rights.  The state of Arkansas decided it wasn’t going to have any of that nonsense in its borders and when a high school in Little Rock attempted to integrate the governor of Arkansas sent in national guard troops to prevent integration.  At which point, at the request of the Mayor of Little Rock, Eisenhower nationalized the Arkansas guard units and sent in the 101st Airborne Division.  (In state nullification terms I see this personally as “I’ll see your crazy and raise you.”)  It ended after a tense year standoff but was one major conflict in the ongoing battle between segregationists/state rights advocates and those that believed in integration/federal authority.

I close with the famous quote by James L. Petigru about his own state, South Carolina – “South Carolina is too small for a republic and too large for an insane asylum.”

Sources:  Wikipedia on the Little Rock Nine, McCulloch v. Maryland, and the Nullification Crisis