Court-Packing Plans

• Author: William E. Leuchtenburg
• Pages: 696-699

Page 696

"Court packing" is an ambiguous phrase. It arises more frequently as an epithet in political disputation than as an analytical term in scholarly discourse. "Packing" connotes a deliberate effort by an executive, especially a President, to appoint one or more (usually more) judges to assure that decisions will accord with the ideological predisposition of that executive. Webster's New International Dictionary defines "pack" as "to ? make up unfairly or fraudulently, to secure a certain result." Yet not everyone agrees on what is unfair, and it is not at all extraordinary for Presidents to take pains to ascertain that a prospective nominee is likely to behave in ways that will not be out of harmony with the ends of their administrations.

Furthermore, the word "packing" has been employed with respect to two different situations?when a President is filling vacancies that have arisen in the natural course of events, and when a President seeks legislation to increase the membership of courts to create additional

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opportunities for appointments that may shape the outcome of pending and future litigation.

Although political antagonists have taken advantage of the elasticity of the word to raise the charge of Court packing through much of our history, scholars have largely concentrated their attention on three particular episodes. The first of these events took place on the night of March 3, 1801, when in his final hours in office, President JOHN ADAMS sat up very late signing commissions of sixteen appointees to circuit judgeships and forty-two justices of the peace for the District of Columbia, including one William Marbury. All these offices had been created in the last three weeks of his term by an obliging Federalist Congress, and Adams, outraged by the victory of the Democratic Republicans in 1800 and fearful of its consequences for the nation, busied himself filling the posts with faithful partisans to serve as a restraint on his successor, THOMAS JEFFERSON. This melodrama of the "midnight judges" would subsequently lead to the landmark case of MARBURY V. MADISON (1803).

Historians long thought they had detected another instance of Court packing during RECONSTRUCTION. In 1870, at a time when the membership of the Court had been reduced, the Supreme Court, in Hepburn v. Griswold, struck down the Legal Tender Act of 1862 as applied to debts incurred before its enactment. The 4?3 vote strictly followed party lines. A year later, in Knox v. Lee and Parker v. Davis, the decision was reversed when the three dissenters in the earlier ruling were joined by two new appointees, both Republicans, of President ULYSSES S. GRANT. Their appointments followed the action of Congress restoring the Court to nine Justices. This sequence gave credibility to the allegation that the Court had been packed in order to save the Republican administration's monetary policy. In fact, however, scholars now agree that neither the augmentation of the size of the bench nor these appointments resulted from partisan or ideological motivations.

By far the most important Court-packing plan in American history emerged out of a conflict between the Supreme Court and the administration of FRANKLIN D. ROOSEVELT in the Great Depression. In 1935 and 1936, the Court again and again struck down NEW DEAL laws, including those creating the two foundation stones of Roosevelt's recovery program, the NATIONAL INDUSTRIAL RECOVERY ACT and the AGRICULTURAL ADJUSTMENT ACT OF 1935 (AAA). Most of these rulings came on split decisions, with OWEN J. ROBERTS joining the conservative "Four Horsemen"?PIERCE BUTLER, JAMES C. MCREYNOLDS, GEORGE SUTHERLAND, and WILLIS VAN DEVANTER?to form a five-man majority, sometimes augmented by the Chief Justice, CHARLES EVANS HUGHES.

The Roosevelt administration responded by exploring a...