Judicial Procedures Reform Bill of 1937

thumb|upright=1.4|The Hughes Court, 1932–1937. Front row: Justices [[Louis Brandeis|Brandeis and Van Devanter, Chief Justice Hughes, and Justices McReynolds and Sutherland.

Back row: Justices Roberts, Butler, Stone, and Cardozo.]]

thumb|right|[[President of the United States|President Franklin D. Roosevelt. His dissatisfaction over Supreme Court decisions holding New Deal programs unconstitutional prompted him to seek methods to change the way the court functioned.]]

The Judicial Procedures Reform Bill of 1937, frequently called the "court-packing plan", was a failed legislative initiative proposed by U.S. President Franklin D. Roosevelt to add more justices to the U.S. Supreme Court in order to obtain favorable rulings regarding New Deal legislation that the Court had ruled unconstitutional. The central provision of the bill would have granted the president power to appoint an additional justice to the U.S. Supreme Court, up to a maximum of six, for every member of the court over the age of 70 years.

In the Judiciary Act of 1869, Congress had established that the Supreme Court would consist of the chief justice and eight associate justices. During Roosevelt's first term, the Supreme Court struck down several New Deal measures as being unconstitutional. Roosevelt sought to reverse this by changing the makeup of the court through the appointment of new additional justices who he hoped would rule that his legislative initiatives did not exceed the constitutional authority of the government. Since the U.S. Constitution does not define the Supreme Court's size, Roosevelt believed it was within the power of Congress to change it. Members of both parties viewed the legislation as an attempt to stack the court, and many Democrats, including Vice President John Nance Garner, opposed it. The bill came to be known as Roosevelt's "court-packing plan", a phrase coined by Edward Rumely. The legislation was unveiled on February 5, 1937, and was the subject of Roosevelt's ninth fireside chat on March 9, 1937. He asked, "Can it be said that full justice is achieved when a court is forced by the sheer necessity of its business to decline, without even an explanation, to hear 87% of the cases presented by private litigants?" Publicly denying the president's statement, Chief Justice Charles Evans Hughes reported, "There is no congestion of cases on our calendar. When we rose March 15 we had heard arguments in cases in which cert has been granted only four weeks before. This gratifying situation has obtained for several years". The 5–4 ruling was the result of the apparently sudden jurisprudential shift by Associate Justice Owen Roberts, who joined with the wing of the bench supportive to the New Deal legislation. Since Roberts had previously ruled against most New Deal legislation, his support here was seen as a result of the political pressure the president was exerting on the court. Some interpreted Roberts' reversal as an effort to maintain the Court's judicial independence by alleviating the political pressure to create a court more friendly to the New Deal. This reversal came to be known as "the switch in time that saved nine"; however, recent legal-historical scholarship has called that narrative into question as Roberts' decision and vote in the Parrish case predated both the public announcement and introduction of the 1937 bill.

Roosevelt's legislative initiative ultimately failed. Henry F. Ashurst, the Democratic chair of the Senate Judiciary Committee, held up the bill by delaying hearings in the committee, saying, "No haste, no hurry, no waste, no worry—that is the motto of this committee." As a result of his delaying efforts, the bill was held in committee for 165 days, and opponents of the bill credited Ashurst as instrumental in its defeat. Contemporary observers broadly viewed Roosevelt's initiative as political maneuvering. Its failure exposed the limits of Roosevelt's abilities to push forward legislation through direct public appeal. Public perception of his efforts here was in stark contrast to the reception of his legislative efforts during his first term. Roosevelt ultimately prevailed in establishing a majority on the court friendly to his New Deal legislation, though some scholars view Roosevelt's victory as pyrrhic.

Background

New Deal

Following the Wall Street Crash of 1929 and the onset of the Great Depression, Franklin Roosevelt won the 1932 presidential election on a promise to give America a "New Deal" to promote national economic recovery. The 1932 election also saw a new Democratic majority sweep into both houses of Congress, giving Roosevelt legislative support for his reform platform. Both Roosevelt and the 73rd Congress called for greater governmental involvement in the economy as a way to end the depression. During the president's first term, a series of successful challenges to various New Deal programs were launched in federal courts. It soon became clear that the overall constitutionality of much of the New Deal legislation, especially that which extended the power of the federal government, would be decided by the Supreme Court.

thumb|right|[[Associate Justice of the Supreme Court of the United States|Associate Justice Oliver Wendell Holmes Jr. Holmes's loss of half his pension pay due to New Deal legislation after his 1932 retirement is believed to have dissuaded Justices Van Devanter and Sutherland from departing the bench.]]

A minor aspect of Roosevelt's New Deal agenda may have itself directly precipitated the showdown between the Roosevelt administration and the Supreme Court. Shortly after Roosevelt's inauguration, Congress passed the Economy Act, a provision of which cut many government salaries, including the pensions of retired Supreme Court justices. Associate Justice Oliver Wendell Holmes Jr., who had retired in 1932, saw his pension halved from $20,000 to $10,000 per year. The cut to their pensions appears to have dissuaded at least two older Justices, Willis Van Devanter and George Sutherland, from retirement. Both would later find many aspects of the New Deal unconstitutional.

Roosevelt's Justice Department

The flurry of new laws in the wake of Roosevelt's first hundred days swamped the Justice Department with more responsibilities than it could manage. Many Justice Department lawyers were ideologically opposed to the New Deal and failed to influence either the drafting or review of much of the White House's New Deal legislation. The ensuing struggle over ideological identity increased the ineffectiveness of the Justice Department. As Interior Secretary Harold Ickes complained, Attorney General Homer Cummings had "simply loaded it [the Justice Department] with political appointees" at a time when it would be responsible for litigating the flood of cases arising from New Deal legal challenges.

Compounding matters, Roosevelt's congenial Solicitor General, James Crawford Biggs (a patronage appointment chosen by Cummings), proved to be an ineffective advocate for the legislative initiatives of the New Deal. While Biggs resigned in early 1935, his successor Stanley Forman Reed proved to be little better. Some recent scholarship has eschewed these labels since they suggest more legislative, as opposed to judicial, differences. While it is true that many rulings of the 1930s Supreme Court were deeply divided, with four justices on each side and Justice Roberts as the typical swing vote, the ideological divide this represented was linked to a larger debate in U.S. jurisprudence regarding the role of the judiciary, the meaning of the Constitution, and the respective rights and prerogatives of the different branches of government in shaping the judicial outlook of the Court. At the same time, however, the perception of a conservative/liberal divide does reflect the ideological leanings of the justices themselves. As William Leuchtenburg has observed:

Whatever the political differences among the justices, the clash over the constitutionality of the New Deal initiatives was tied to clearly divergent legal philosophies which were gradually coming into competition with each other: legal formalism and legal realism. During the period c. 1900 – c. 1920, the formalist and realist camps clashed over the nature and legitimacy of judicial authority in common law, given the lack of a central, governing authority in those legal fields other than the precedent established by case law—i.e. the aggregate of earlier judicial decisions. The conflict between formalists and realists implicated a changing but still-persistent view of constitutional jurisprudence which viewed the U.S. Constitution as a static, universal, and general document not designed to change over time. Under this judicial philosophy, case resolution required a simple restatement of the applicable principles which were then extended to a case's facts in order to resolve the controversy. This earlier judicial attitude came into direct conflict with the legislative reach of much of Roosevelt's New Deal legislation. Examples of these judicial principles include:

the early-American fear of centralized authority which necessitated an unequivocal distinction between national powers and reserved state powers;
the clear delineation between public and private spheres of commercial activity susceptible to legislative regulation; and
the corresponding separation of public and private contractual interactions based upon "free labor" ideology and Lockean property rights.

At the same time, developing modernist ideas regarding politics and the role of government placed the role of the judiciary into flux. The courts were generally moving away from what has been called "guardian review" — in which judges defended the line between appropriate legislative advances and majoritarian encroachments into the private sphere of life—toward a position of "bifurcated review". This approach favored sorting laws into categories that demanded deference towards other branches of government in the economic sphere, but aggressively heightened judicial scrutiny with respect to fundamental civil and political liberties. The slow transformation away from the "guardian review" role of the judiciary brought about the ideological—and, to a degree, generational—rift in the 1930s judiciary. With the Judiciary Bill, Roosevelt sought to accelerate this judicial evolution by diminishing the dominance of an older generation of judges who remained attached to an earlier mode of American jurisprudence.

New Deal in court

thumb|right|[[Associate Justice of the Supreme Court of the United States|Associate Justice Owen J. Roberts. The balance of the Supreme Court in 1935 caused the Roosevelt administration much concern over how Roberts would adjudicate New Deal challenges.]]

Roosevelt was wary of the Supreme Court early in his first term, and his administration was slow to bring constitutional challenges of New Deal legislation before the court. However, early wins for New Deal supporters came in Home Building & Loan Association v. Blaisdell and Nebbia v. New York at the start of 1934. At issue in each case were state laws relating to economic regulation. Blaisdell concerned the temporary suspension of creditor's remedies by Minnesota in order to combat mortgage foreclosures, finding that temporal relief did not, in fact, impair the obligation of a contract. Nebbia held that New York could implement price controls on milk, in accordance with the state's police power. While not tests of New Deal legislation themselves, the cases gave cause for relief of administration concerns about Associate Justice Owen Roberts, who voted with the majority in both cases. Roberts's opinion for the court in Nebbia was also encouraging for the administration:

Nebbia also holds a particular significance: it was the one case in which the Court abandoned its jurisprudential distinction between the "public" and "private" spheres of economic activity, an essential distinction in the court's analysis of state police power. Chief Justice Hughes arranged for the decisions announced from the bench that day to be read in order of increasing importance. Humphrey's Executor v. United States, Louisville Joint Stock Land Bank v. Radford, and Schechter Poultry Corp. v. United States.

Further New Deal setbacks

[[File:Homer Cummings, Harris & Ewing photo portrait, 1920.jpg|thumb|right|Attorney General Homer Stillé Cummings. His failure to prevent poorly drafted New Deal legislation from reaching Congress is considered his greatest shortcoming as Attorney General. However, New Deal supporters still wondered how the AAA would fare against Chief Justice Hughes's restrictive view of the Commerce Clause from the Schechter decision.

Antecedents to reform legislation

thumb|right|[[Associate Justice of the Supreme Court of the United States|Associate Justice James Clark McReynolds. A legal opinion authored by McReynolds in 1914, while U.S. Attorney General, is the most probable source for Roosevelt's court reform plan.]]

The coming conflict with the court was foreshadowed by a 1932 campaign statement Roosevelt made: