Pack the Court
During FDR’s first term, the Supreme Court struck down eight of his New Deal programs.
They included programs for industrial and agricultural recovery which were foundational to his efforts to lift the country out of the Great Depression.
The Court ruled these programs unconstitutional by construing the Constitution’s clause granting Congress the power to regulate interstate commerce narrowly.
And many Constitutional scholars disagreed with the Court’s analysis.
Public sentiment grew that the Supreme Court had become an enemy of everyday working people.
After his landslide reelection in 1936, FDR proposed an expansion of the Supreme Court to include as many as fifteen members.
He called the plan “judicial reform,” but opponents believed it was an attempt to neutralize Justices who had voted to strike down his New Deal programs.
The Constitution provided no fixed number of Justices for the Supreme Court and the number of Justices had changed six times.
Nevertheless, FDR’s plan was derided as a “court packing plan.”1
FDR saw the Court’s judicial roadblock to progressive New Deal legislation as “a quiet crisis but… far-reaching in its possibilities of injury to America.”
He believed that members of the Supreme Court didn’t understand the economic despair which then gripped the country.
His plan would remedy this problem.
His court packing plan would “bring to the decision of social and economic problems younger men who have had personal experience and contact with modern facts and circumstances under which average men have to live and work.”
At the time, the average age of the Justices serving on the Supreme Court was seventy-one.
FDR’s plan would offer retirement at full pay for a federal judge or a Supreme Court justice over the age of seventy.
For those who refused to retire, an additional judge would be appointed by the President, subject to Senate confirmation, as provided in the Constitution.
In explaining his court packing plan, FDR noted that the Constitution gave Congress the power to change the number of justices on the Supreme Court and that it done so during five previous presidential administrations.
FDR:
“The Court… has improperly set itself up as a third house of the Congress - a super-legislature… acting not as a judicial body, but as a policy-making body.”
“We have, therefore, reached the point as a nation where we must take action to save the Constitution from the Court and the Court from itself.”
“Our difficulty with the Court today rises not from the Court as an institution but from human beings within it.”
“We cannot yield our constitutional destiny to the personal judgement of a few men who, being fearful of the future, would deny us the necessary means of dealing with the present.”
“In our courts we want a government of laws and not of men.”
We have reached that point again.
It’s time to revive FDR’s court packing plan.
******************************
I’ll see you tomorrow.
— Brenda
The Constitution grants Congress the power to determine how many Justices sit on the Supreme Court. This number has ranged between 5 and 10, but since 1869 the number has been set at 9.
Share this post