Court-packing and compromise.

• Author: Cushman, Barry

The controversy precipitated by Franklin D. Roosevelt's Court-packing Plan is among the most famous and frequently discussed episodes in American constitutional history. During his first term as President, Roosevelt had watched with mounting discontent as the Supreme Court declared unconstitutional a series of measures central to his New Deal. Aging justices whom Roosevelt considered reactionary and out of touch had struck down the National Industrial Recovery Act ("NIRA"), the Agricultural Adjustment Act ("AAA"), federal railway pension legislation, federal farm debt relief legislation, critical portions of the Administration's energy policy, and state minimum wage legislation for women. In the spring of 1937 the Court would be ruling on the constitutionality of such major statutes as the National Labor Relations Act ("NLRA") and the Social Security Act ("SSA"), and a number of Roosevelt advisors doubted that the Court as then comprised would uphold those measures. The odds might have improved had FDR had an opportunity during his first term to appoint one or more justices to the Court, but no vacancies had occurred.

In November of 1936, Roosevelt enjoyed a spectacular reelection victory, winning the electoral college vote by a margin of 523-8. In the wake of this remarkable demonstration of public support, the President decided to move against the Court. On February 5, 1937, he sent to Congress a proposal to "reorganize" the federal judiciary. The bill contained a provision that would have empowered the president to nominate to the Supreme Court one additional justice for each sitting justice who had not retired within six months following his seventieth birthday. At the time there were six justices fitting that description. Accordingly, the bill, if enacted, would have permitted the president to appoint six new justices immediately, thereby enlarging the membership of the Court to fifteen. The bill ultimately was rejected by the Senate, and never received serious consideration in the House. (1) A number of scholars have argued that its prospects for congressional passage were never very bright. (2) It is often noted, however, that Roosevelt had numerous opportunities to accept compromise proposals for dealing with "the Court problem," a number of which promised much better chances of enactment. (3) Yet the president repeatedly rejected such proposals, insisting instead that congressional leaders press forward with his own. (4) AS Professor James Patterson put it, FDR "remained serenely confident, refusing even to discuss the possibility of compromise." (5) A number of reasons have been offered to explain Roosevelt's recalcitrance, and I do not dispute them here. Instead, I will suggest that such explanations are incomplete, and that a fuller understanding of the president's calculations makes his posture appear more rational than is commonly thought.

The reasons for Roosevelt's rejection of some alternatives to enlargement of the Court's membership are well understood. The president and his advisors elected not to pursue proposals to curtail the Court's appellate jurisdiction, because this would leave lower federal courts hostile to the New Deal with the unsupervised power of judicial review. (6) Proposed bills to require a supermajority of the justices to invalidate federal legislation were viewed as likely to be declared unconstitutional. (7) Moreover, if such a statute were upheld, it might reduce the opportunities for the Court to protect citizens against infringements of their civil liberties. (8)

The president also rejected the possibility of amending the Constitution to confer upon Congress greater regulatory authority than the Court had been prepared to recognize. (9) First, Roosevelt believed that the problem lay not with the Constitution but instead with the Court, and proposing such an amendment might be seen as conceding that the Court's decisions invalidating New Deal measures had been correct. (10) Second, there was disagreement within the administration and in the broader liberal legal community over the form that such an amendment should take, and indeed over whether one should be offered at all. Two years of effort by Justice Department lawyers had failed to yield an acceptable proposal. (11) In addition, any amendment would have to garner a vote of two-thirds in each house of Congress before winning ratification in thirty-six state legislatures. Roosevelt did not believe that any acceptable amendment could negotiate that course within a reasonable time.(12) For the same reasons, FDR opposed suggestions for an amendment that would have imposed a mandatory retirement age on the justices, or imposed supermajority voting requirements on the Court, or permitted Congress to overrule Supreme Court decisions. (13) The President believed that state legislatures were dominated by conservative interests and lawyers, both of whom would resist any such amendment. (14) As he wrote to his old friend Charles C. Burlingham, who favored the constitutional amendment approach, "You and I know perfectly well that the same forces which are now calling for the amendment process would turn around and fight ratification on the simple ground that they do not like the particular amendment adopted by the Congress. If you were not as scrupulous and ethical as you happen to be, you could make five million dollars as easy as rolling off a log by undertaking a campaign to prevent ratification.... Easy money." (15) Finally, any legislation that Congress might enact pursuant to an amendment expanding its regulatory powers would remain subject to judicial review and interpretation. (16) Such a modification of the nation s charter could not truly defang an obstinately hostile judiciary.

The consideration and rejection of all of these proposals left the administration with only one acceptable solution, and that was enlargement of the Court by statute. (17) But that did not end the possibilities for compromise. There were indications early in the struggle that members of Congress might have been prepared to accept a bill providing for two or three additional justices, even if they opposed expanding the Court's membership to fifteen. Democratic Senator Key Pittman wrote to Attorney General Homer Cummings proposing an eleven-member Court just three days after the President surprised the congressional leadership with his own proposal. (18) On February 20 a delegation of congressional leaders headed by Vice-President John Nance Garner, Senate Majority Leader Joe Robinson, and Senate Judiciary Committee Chairman Henry Fountain Ashurst urged the President to agree to a compromise providing for the addition of two or three additional justices. Roosevelt responded by "laugh[ing] in their faces." (19)

This posture continued well into the spring. After the Supreme Court had upheld the National Labor Relations Act on April 12, Robinson took presidential advisor Joe Keenan aside and urged the Administration to declare victory and liquidate the Court plan. "[I]f the president wants to compromise," Robinson told Keenan, "I can get him a couple of extra justices tomorrow." (20) Yet when this suggestion was conveyed to Roosevelt, he again rejected it. (21) A few weeks later, while the President was on a two-week fishing trip in the Gulf of Mexico, Robinson, Pat Harrison, and Alben Barkley invited James Roosevelt to lunch to break the news that there were not enough votes in the Senate to pass his father's bill. The Senate leaders urged that the President permit them to work out the best deal possible, and advisors such as Tommy Corcoran hoped that FDR would now suspend his pursuit of the Court bill so that Congress might attend to other pressing matters. Yet neither James Roosevelt nor Jim Farley was successful in persuading the President to accept a compromise, and FDR confirmed his resolve to his cabinet and congressional leaders upon returning to Washington May 14. (22) Just days later, Senator Burton Wheeler informed the White House that Justice Willis Van Devanter would announce his retirement from the Court on May 18, and hinted that Justice George Sutherland also planned to retire soon. The time was ripe, Wheeler urged, for compromise on the Court bill. And still, the President refused to budge. (23) Even after the Court upheld the Social Security Act on May 24, (24) Roosevelt's press secretary Stephen Early told Scripps-Howard newspaper columnist Raymond Clapper that the president intended to press forward with his original proposal. (25)

Not until June 3 did Roosevelt finally authorize Robinson to seek the best compromise that could be salvaged. (26) By then, however, many were already saying that the time for compromise had come and gone. (27) Even two weeks earlier, a private meeting of Senate leaders of the opposition to the President's plan had revealed that they would no longer brook any talk of compromise. (28) On May 18, the Senate Judiciary Committee voted to disapprove the Court-packing bill by a margin of 10-8. Before doing so they discussed and rejected six compromise proposals, one of which would have increased the Court's membership to eleven. (29) That evening Senator Wheeler told reporters, "'they are begging for a compromise, but they ought to know it s too late to talk of compromise."' (30) Roosevelt speech writer Sam Rosenman later wrote of the Court-packing plan, "The thing that killed it was Roosevelt's refusal to compromise, when there was still time to compromise." (31) As Tommy Corcoran confided to Harry Hopkins in 1939, "[w]e missed a compromise when that could have been accomplished." (32) Wheeler later told Homer Cummings, while cooling off in the club house after a round of golf at Burning Tree, that "the Court fight might have been settled half a dozen times during its progress." (33) Cummings himself recognized that "[i]t was probably a mistake not to have worked out in early season a...