Must Joe Robinson die? Reflections on the 'success' of court packing.

• Author: Schapiro, Robert A.
• Position: The Sound of Legal Thunder: The Chaotic Consequences of Crushing Constitutional Butterflies

History may be radically contingent or it may be overdetermined. Crushing a small creature may have drastic results,(1) as may saving the life of a person meant to die.(2) On the other hand, shooting a Tyrannosaurus rex may have no discernible effect on history.(3)

Are various constitutional episodes more like the butterfly, seemingly slight, but producing dramatic effects, or like the dinosaur, seemingly grand, but which may be erased without a trace? One need not find textualism extinct to conclude that in this regard, constitutional language may be more dinosaur than butterfly. A brief detour into non-counterfactual history presents the evidence. How would constitutional law change if the words "equal protection of law" were removed from the Fifth Amendment? Presumably, not very much.(4) What if the drafters of the Eleventh Amendment had specified that the provision barred only suits against states by citizens of other states? Again, res ipsa loquitur.(5) In neither instance has the particular constitutional language proved especially significant. But what about grander constitutional events? Can altering one historical conjuncture transform all that follows? To explore this question, I consider one of the most notorious aspects of the twentieth century's greatest constitutional moment:(6) President Franklin Roosevelt's failed plan to "pack" the United States Supreme Court.

Buoyed by a landslide victory in the election of 1936 and increasingly frustrated by a Supreme Court that was striking down key features of the New Deal, President Roosevelt decided to launch a frontal attack on the judicial opposition. On February 5, 1937, President Roosevelt presented a judicial reorganization bill to Congress. The proposed legislation would have allowed him to appoint an additional Justice to the United States Supreme Court for every member of the Court who refused to retire or resign within six months after turning 70.(7) The plan would have given Roosevelt six appointments immediately and would have permanently increased the size of the Court to 15.

In early July 1937, it appeared that some version of the "court-packing" plan would likely become law.(8) But all that changed with an unexpected passing. On July 14, 1937, Joe Robinson, the Majority Leader of the United States Senate who spearheaded the President's congressional efforts, was found dead in his bedroom, the apparent victim of a heart attack.(9) The reorganization plan died with the Majority Leader.(10) What if Senator Robinson had survived the grueling congressional debates and the torrid Washington summer and had shepherded the President's proposal safely through Congress?

The warnings of the bill's opponents could not have been more dire. The Report of the Senate Judiciary Committee cautioned:

[The bill's] ultimate operation would be to make this Government one of men rather than one of law, and its practical operation would be to make the Constitution what the executive or legislative branches of the Government choose to say it is--an interpretation to be changed with each ... administration.(11) Would passage of the bill have succeeded in undermining the constitutional order? Would it have safeguarded the wishes of the majority against an out-of-touch Court?

As it was, the proposal itself produced both substantial benefits and extraordinary harms for the President. I would like to suggest that a different disposition of the bill would not have altered these consequences.

The plan exacted a heavy political toll, hindering the President's domestic and foreign policy agenda.(12) President Roosevelt's dogged efforts to pass the court-packing plan energized his opponents and alienated his friends.(13) An ultimate legislative...