The court-packing plan as symptom, casualty, and cause of gridlock.

• Author: Cushman, Barry
• Position: The American Congress: Legal Implications of Gridlock

By the summer of 1936, President Franklin Roosevelt was convinced that the New Deal was the victim of gridlock. The problem, to be sure, was not in the Congress. During Roosevelt's first term the Democrats enjoyed commanding majorities in both the House and the Senate, (1) and most of the President's legislative agenda had been enacted with bi-partisan support and few dissenting votes. (2) The problem was instead with the federal judiciary, and more particularly, with the Supreme Court of the United States. Though the Court had narrowly upheld the Administration's monetary policy in the Gold Clause Cases (3) early in 1935, it had also struck down the National Industrial Recovery Act's (NIRA) oil program on nondelegation grounds in the Hot Oil Case. (4) Later that spring the Court held that the Railroad Retirement Act of 1934 did not pass constitutional muster. (5) On what New Dealers called "Black Monday" in May of 1935, a unanimous Court finished off what remained of the NIRA in Schechter Poultry, (6) struck down the Frazier-Lemke Farm Debt Relief Act, (7) and held that the President did not have authority to remove a Commissioner of the Federal Trade Commission. (8) In January of 1936, a divided Court invalidated the Agricultural Adjustment Act. (9) A few months later, the Court pronounced the Guffey Coal Act unconstitutional. (10) And although that spring saw the Tennessee Valley Authority survive a constitutional challenge, (11) in June the Court held that the State of New York did not have the power to prescribe minimum wages for women working in industry. (12) In the view of Roosevelt and of many others, a recalcitrant Court was preventing the country from achieving necessary recovery and reform.

The President saw this gridlock as the product of partisan divisions. In a campaign address at Baltimore, Maryland in October of 1932, candidate Roosevelt had observed that "[a]fter March 4, 1929, the Republican Party was in complete control of all branches of the [f]ederal [g]overnment--the [e]xecutive, the Senate, the House of Representatives[,] and, I might add for good measure, the Supreme Court as well." (13) The 1932 elections would place the legislative and executive branches in the control of the Democrats, but the lack of any vacancies during Roosevelt's first term would prevent him from changing the complexion of the nation's highest Court. And though he would greet some early judicial setbacks with aristocratic equanimity, (14) the carnage of Black Monday would prompt him to chastise the Justices for their "'horse and buggy interpretation'" of the Commerce Clause. (15) The negative reaction to this criticism of the Court would lead Roosevelt to keep his own counsel on the issue in future public remarks. (16) He studiously avoided raising the Court as an issue during the 1936 campaign. (17) But privately, as Tommy Corcoran told Henry Hopkins, "the President was thoroughly aroused 'and determined to prevent' the Court from blocking what he believed to be the very fundamentals of our democracy. (18) As Professor Marian McKenna reports, Roosevelt was determined not to "permit the Supreme Court to wreck any more of his attempts to achieve reform and recovery." (19)

Following his landslide re-election in November of 1936, the President began again to air his concerns about the Court. (20) In his Annual Message to Congress delivered on January 6, 1937, (21) Roosevelt alluded to what he regarded as the Court's cramped construction of the Constitution, which was in his view frustrating the efforts of the Administration and Congress to alleviate public suffering. He asserted:

During the past year there has been a growing belief that there is little fault to be found with the Constitution of the United States as it stands today. The vital need is not an alteration of our fundamental law but an increasingly enlightened view with reference to it. Difficulties have grown out of its interpretation; but rightly considered, it can be used as an instrument of progress and not as a device for prevention of action. (22) It was "not to be assumed that there will be prolonged failure to bring legislative and judicial action into closer harmony. Means must be found," he insisted, "to adapt our legal forms and our judicial interpretation to the actual present national needs of the largest progressive democracy in the modern world." (23) After expressing confidence that the Executive and Legislative branches of the national government would "continue the task of making democracy succeed," the President remarked that "[t] he judicial branch also is asked by the people to do its part in making democracy successful." (24) At a dinner in March of 1937 celebrating the Democrats' overwhelming victories in the 1936 general election, FDR returned to his earlier equine theme, bemoaning the fact that the Supreme Court had stymied the New Deal at nearly every turn. (25) "I defy anyone to read the opinions concerning A.A.A., the Railroad Retirement Act, the National Recovery Act, the Guffey Coal Act[,] and the New York Minimum Wage Law," he challenged his audience, "and tell us exactly what, if anything, we can do for the industrial worker in this session of the Congress with any reasonable certainty that what we do will not be nullified as unconstitutional." (26) "For as yet there is no definite assurance that the three horse team of the American system of government will pull together." (27) The three horses to which the President referred, as he made clear in a nationally broadcast fireside chat five days later, were "the three branches of government--the Congress, the Executive[,] and the Courts." (28) As he had put it at the victory dinner,

[i]f three well-matched horses are put to the task of ploughing up a field where the going is heavy, and the team of three pull as one, the field will be ploughed. If one horse lies down in the traces or plunges off in another direction, the field will not be ploughed. (29) The President lamented that "[t]wo of the horses are pulling in unison today; the third is not." (30)

The President and his advisors considered a variety of proposals to break this impasse. The 1936 Democratic Platform had pledged the Party to do so through "'a clarifying amendment'" to the Constitution, should that prove necessary. (31) This was a solution that Roosevelt had contemplated for some time, (32) but one that he ultimately rejected. (33) The principal reason that he chose not to pursue this course, the President explained, was that it might too easily fall victim to the gridlock virtually encoded in the Constitution's Article V amendment process. (34) There was nothing approaching consensus in the Congress on how such an amendment ought to be worded, and

[i]t would take months or years to [secure] substantial agreement upon the type and language of an amendment. It would [then] take months and years thereafter to get a two-thirds majority in favor of that amendment in both Houses of the Congress. Then would come the long course of ratification by three-fourths of all the States.... [P]owerful economic interests [such as] ... newspaper publishers, Chambers of Commerce, Bar Associations, [and] Manufacturers' Associations would line up to oppose any such amendment, and would prevent it from being "ratified within anything like a reasonable time." (35) Moreover, "thirteen States which contain only five percent of the voting population could block ratification even though the thirty-five States with ninety-five percent of the population are in favor of it." (36) To embark upon "the time-consuming process of amendment" would be to fall into a trap set by the opponents of "social and economic legislation along modern lines." (37)

The President and his advisors therefore settled on the Court-packing plan, which would permit Roosevelt to appoint an additional justice for each sitting justice who had reached the age of seventy without retiring. Because there were at the time six Justices who had celebrated their seventieth birthdays, the bill would have permitted the President immediately to enlarge the Court's membership from nine to fifteen. The proposal encountered fierce opposition in the press (38) and from a variety of organizations and interest groups. (39) Key New Deal constituencies, such as farm groups and organized labor, either opposed the plan or damned it with faint praise rather than delivering any substantial support. (40) Congressional offices were flooded with mail that ran heavily against the plan, (41) which never commanded the support of a majority in any of the public opinion polls taken by George Gallup and Elmo Roper throughout the struggle. (42) Nevertheless, the 1936 elections had given the Democrats dominant supermajorities in both the House and the Senate, and this provided good reason to hope that the bill would be approved in roll call votes on the floors of those chambers. (43) But neither the President's bill nor a later substitute proposal would ever come to such a vote. This fact can be attributed in large measure, I suggest, to two institutional features of Congress. The first is the committee system; the second is the Senate filibuster.

Roosevelt's decision not to consult congressional leaders before announcing his proposal alienated many of the men on whose aid he would rely in shepherding the proposal through the national legislature. (44) Among these was House Judiciary Committee Chairman Hatton Sumners, a Texas Democrat. Sumners was of the view that the impasse could be broken were Justices Van Devanter and Sutherland to retire, and was confident that they could be induced to do so were Congress to enact adequate judicial pension legislation. He quickly rushed such a measure to passage in the House, and his bill had become law by March 1. (45) But Sumners was adamantly opposed to the Court-packing plan. (46) When the President announced his proposal on February 5...