"The contest, for ages, has been to rescue Liberty from the grasp of executive power. Through all this history of the contest for liberty, executive power has been regarded as a lion which must be caged. So far from being considered the natural protector of popular right, it has been dreaded, uniformly, always dreaded, as the great source of its danger." Daniel Webster, May 7, 1834.

Suppose a President with the help of a willing Congress was bent on doing something which the Supreme Court deems contrary to the Constitution. They pass a statute. A case arises under it. The Supreme Court on the hearing of the case unanimously declares the statute too be null, as being beyond the powers of Congress. Congress forthwith passes and the President signs another statute more than doubling the number of the justices on the high Court. The President appoints to the new justiceships men who are pledged to hold the former statute constitutional. The Senate confirms his appointments. Another case raising the validity of the disputed statute is brought up to the Court. The new justices outvote the old ones. The statute is held valid: The security provided for the protection of the Constitution is gone like a morning dew.

What prevents such assaults on the fundamental law - assaults which, however immoral in substance, would be perfectly legal in form? Not the mechanism of government, for all its checks have been evaded. Not the conscience of the legislature and the President, for heated combatants seldom shrink from justifying the means by the end. Nothing but the fear of the people whose broad good sense and attachment to the great principles of the Constitution may generally be relied on to condemn such a perversion of its forms.

If evidence were lacking that Roosevelt's massive re-election victory at the polls in November, 1936, had done something to him, he lost no time in supplying the proof. In his message to Congress on January 3, 1937, Roosevelt declared:

"The carrying out of the laws of the land as enacted by the Congress requires protection until the final adjudication by the highest tribunal of the land. The Congress has the right and can find the means to protect its own prerogatives."

Thus began Roosevelt's plan to reorganize and recreate the United States Supreme Court in his own image by waging one of the greatest battles against the judicial branch of our government. Unfortunately, little if any of this battle is taught in our great institutions of learning. This chapter retraces this battle, it will detail how our Supreme Court almost fell in the year 1937. Historians will record that Roosevelt lost this battle, but as we will see, Roosevelt won the war!

The drama's prologue begins eighteen months earlier in the White House on May 31, 1935, four days after the Supreme Court had unanimously invalidated the National Industrial Recovery Act.Footnote1 The four days had given Roosevelt's temper time to reach the boiling point, and Senator Felix Frankfurter and General Hugh S. Johnson who conferred with him in the oval room, found him in a fighting mood. Roosevelt told them that he wouldn't take the Court's action lying down, that he wouldn't stand for it. The country was with him, not with the Supreme Court, Roosevelt said, and he promised angrily to bring the Court into line, if he had to "pack it" or even "deny it appellate jurisdiction." It was here that Roosevelt first announced his decision to give battle to the Supreme Court. The famous "horse-and-buggy" press conference took place a little later.

To Franklin Delano Roosevelt, unlike most politicians, precedents were made to be broken. His insistence on having his own way without interference, and after so much success with handling the Congress and the public, he was not about to let the Supreme Court stand in the way of his new order.

Add to such a personality the theory of the courts function which Roosevelt expressed to a doubtful senator during the court fight, and you have an understandable pattern of character and action. Roosevelt was explaining to the senator that the fault was not his but the Supreme Court's. Roosevelt said he had wanted to play ball with the Court, and at the very start of his term he had suggested to Chief Justice Hughes a sort of consultative relation between them. He had intimated to the Chief Justice that he would like to discuss his important economic and social plans, to get the Court's slant on them before he acted. But the Chief Justice was chilled to the idea. Hughes made it clear to Roosevelt that the strictest separation between the Supreme Court and the White House was not only advisable but necessary.

"You see," said Roosevelt to the senator, "he wouldn't cooperate."

No wonder, then, that through the remaining year and a half of his first term, as the Court's decisions against the New Deal piled up, Roosevelt kept his determination to force the Court into line. Long before the 1936 presidential election, it was known in the inner White House circle that the Supreme Court would probably be dealt with if the election went well. With the campaign to be got through, the strictest secrecy was maintained. Yet the determination was unquestionably there. The best proof of this is the fact that legal experts in the Department of Justice were hard at work studying approaches to the Court problem during a good part of the campaign.

Then came the election itself. If anything was needed to persuade Roosevelt to act, it was his majority on November 3, 1936. He took the 27,000,000 votes cast for him as an endorsement as personal as appointment to be trustee and guardian of a friend's children. He believed that the people had given him carte blanche to go forward, in whatever direction and by whatever means seemed best to him. Therefore, it was only a few days after the votes had been counted that Roosevelt called Attorney General Homer Cummings to the White House and told him that it was time to work out a scheme for dealing with the Supreme Court. Roosevelt enjoined the secrecy on Cummings and observed it himself. Cummings and a few trusted subordinates went to work on a series of elaborate studies of the different alternatives, both amendments and legislative acts to deal with the Court. All through November and December they worked. But no definite plan was produced. They merely arrived at a set of general conclusions as to what they wanted. The amendment approach was discarded, as being too slow and too uncertain. Moreover, as they interpreted it, the federal Constitution needed no amendment. They reasoned, the Court personnel needed to be changed, and one obvious way for the required change in personnel was to pack it. But how could it be done constitutionally.

The "court packing plan" was born late in December by Cummings while he was in his Justice Department office one evening, mulling over this problem. Previously, he and Roosevelt decided that reform of the lower courts, with more judges to speed up procedure there, was also desirable, and they wanted a general system on which the Supreme Court could be increased and the new lower court judges provided. Yet how to pack a court by principle? Cummings desk was piled high with papers, all dealing with the subject. He picked up one after another, glanced at them and put them down again. Then Cummings remembered that in his book, Federal Justice, he had quoted from a memorandum prepared for President Wilson in 1913 by Associate Justice James McReynolds, then Attorney General. The paper was an argument for insuring a young, vigorous judiciary by appointing an extra judge for every judge who had served ten years, had reached the age of seventy and had failed to resign or retire. The germinal idea was borrowed from a radical Republican bill which passed the House in 1869. McReynolds had limited it to the lower courts, but Cummings thought to himself, why not extend it to include the Supreme Court also? Thus the whole problem would be met. Cummings roughed in his plan and hurried to the White House. After Roosevelt glanced at the plan, his face lit up.

"That's the one, Homer," he said excitedly.

Roosevelt was completely delighted with the plan. Knowing that the plan came from the mind of Justice McReynolds, the Supreme Court's most die-hard conservative, enchanted him. All that remained was to draw up and put the finishing touches on the plan. This was done entirely in secret. Now, all that remained was the right opportunity for Roosevelt to present the plan, which came in February, 1937.

On February 4, 1937, just two weeks after his inauguration, Roosevelt communicated with Joe Robinson, his Senate leader, and Speaker Bankhead of the House. He told them that there would be an important announcement at the Cabinet meeting the next morning and to bring with them Hatton Sumners and Senator Henry Ashurst, chairmen respectively of the House and Senate Judiciary Committees as well as Sam Rayburn, House Majority Leader. The cabinet and the invited legislators were present shortly before noon, assembled around the large table in the cabinet room, and wondering what was in the air.

Roosevelt came in hurriedly, followed by a secretary with a sheaf of papers - the same mimeographed copies of Roosevelt's message to Congress, the Attorney General's letter and the Court Bill which was later distributed to Congress and the press. Roosevelt looked at his watch and said he would not have very much time. Roosevelt had sent for them to inform them that he was sending to congress a message and the draft of a bill which proposed a reorganization of the Supreme Court. The bill would give him power to appoint a justice for every member of the Supreme Court who had reached the age of 70 and refused to retire, and he could appoint as many as six additional judges. He explained that this was necessary because, due to the age of the justices the Court was behind in its work, that the method of administering the Supreme Court's docket was defective and that the bill would apply to district and circuit judges and would enable him to provide enough judges to keep up with the court's lagging business.

Roosevelt made a few more brief explanations, looked at his watch again and explained that he had a press conference in a few minutes, could wait no longer and went out of the room.

The President of the United States had just acquainted the cabinet and the democratic congressional leaders with a plan, the boldest and most revolutionary any president had ever suggested to his party colleagues. Not a soul present, save Attorney General Cummings, had any inkling of what was coming. No one was asked to comment or give an opinion. It was an imperial order by a man who had become confused about his true place in the general scheme of things.

This was one show that was being managed by Franklin Delano Roosevelt himself. Up until now Roosevelt had received advice and direction on political matters from James Farley, Vice President Garner, Joe Robinson in the Senate, Bankhead, Rayburn and others in the House. But all of these men had been carefully excluded from any knowledge of this step.

At noon Roosevelt gave his press conference. In it he declared:

"I have recently called the attention of the Congress to the clear need for a comprehensive program to reorganize the administrative machinery of the executive branch of our government. I now make a similar recommendation to the Congress in regard to the judicial branch of the government, in order that it also may function in accord with modern necessities.

"The Constitution provides that the President 'shall from time to time give to the Congress information of the state of the Union, and recommend to their consideration such measures as he shall judge necessary and expedient.' No one else is given a similar mandate. It is therefore the duty of the President to advise the Congress in regard to the judiciary whenever he deems such information or recommendation necessary.

"I address you for the further reason that the Constitution vests in the Congress direct responsibility in the creation of courts and judicial offices and in the formulation of rules of practice and procedure. It is, therefore, one of the definite duties of the Congress constantly to maintain the effective functioning of the Federal judiciary.

"Since the earliest days of the republic, the problem of the personnel of the courts had needed the attention of the Congress. In almost every decade since 1789, changes have been made by the Congress whereby the numbers of judges and the duties of judges in Federal courts have been altered in one way or another. The Supreme Court was established with six members in 1789; it was reduced to five in 1801; it was increased to seven in 1807; it was increased to nine in 1837; it was increased to 10 in 1863; it was reduced to 7 in 1866; it was increased to 9 in 1869.

"The simple fact is that today a new need for legislative action arises because the personnel of the Federal judiciary is insufficient to meet the business before them A growing body of our citizens complain of the complexities, the delays, and the expense of litigation in United States Courts.

"Delay in any court results in injustice. It makes lawsuits a luxury available only to the few who can afford them or who have property interests to protect which are sufficiently large to repay the cost. Poorer litigants are compelled to abandon valuable rights or to accept inadequate or unjust settlements because of sheer inability to finance or to await the end of a long litigation.

"Even at the present time the Supreme Court is laboring under a heavy burden. Its difficulties in this respect were superficially lightened some years ago by authorizing the Court, in its discretion, to refuse to hear appeals in many classes of cases. This discretion was so freely exercised that in the last fiscal year, although 867 petitions for review were presented to the Supreme Court, it declined to hear 717 cases.

"In the Federal courts there are in all 237 life tenure permanent judgeships. Twenty-five of them are now held by judges over 70 years of age and eligible to leave the bench on full pay. Originally no pension or retirement allowance was provided by Congress.

"When after eighty years of our national history the Congress made provision for pensions, it made a well-entrenched tradition among judges to cling to their posts, in many instances far beyond their years of physical or mental capacity. As with other men, responsibilities and obligations accumulated. No alternative had been open to them except to attempt to perform the duties of their offices to the very edge of the grave.

"In exceptional cases, of course, judges, like other men, retain to an advanced age full mental and physical vigor. Those not so fortunate are often unable to perceive their own infirmities. They seem to be tenacious of the appearance of adequacy.

"It is obvious, therefore, from both reason and experience, that some provision must be adopted, which will operate automatically to supplement the work of older judges and accelerate the work of the courts.

"I therefore, earnestly recommend that the necessity of an increase in the number of judges be supplied by legislation providing for the appointment of additional judges in all Federal courts, without exception, where there are incumbent judges of retirement age who do not choose to retire or resign.

"I also recommend that the Congress provide machinery for taking care of sudden or long-standing congestion in the lower courts. The Supreme Court should be given power to appoint an administrative assistant who may be called a proctor.

"I attach a carefully considered draft of a proposed bill, which, if enacted, would, I am confident, afford substantial relief. The proposed measure also contains a limit on the total number of judges who might thus be appointed and also a limit on the potential size of any one of our Federal courts.

"These proposals do not raise any issue of constitutional law. They do not suggest any form of compulsory retirement for incumbent judges. Instead, those who have reached the retirement age, but desire to continue their judicial work, would be able to do so under less physical and mental strain and would be able to play a useful part in relieving the growing congestion in the business of our courts. Among them are men of eminence whose services the government would be loath to lose.

"If, on the other hand, any judge eligible for retirement should feel that his court would suffer because of an increase in its membership, he may retire or resign under already existing provisions of law if he wishes so to do. In this connection let me say that the pending proposal to extend to the justices of the Supreme Court the same retirement privileges now available to other Federal judges, has my entire approval.

"One further matter requires immediate attention. We have witnessed the spectacle of conflicting decisions in both trail and appellate Courts on the constitutionality of every form of important legislation. Such a welter of uncomposed differences of judicial opinion has brought the law, the courts, and, indeed, the entire administration of justice dangerously near to disrepute.

"A Federal statute is held legal by one judge in one district; it is simultaneously held illegal by another judge in another district. An act valid in one judicial circuit is invalid in another judicial circuit. Thus rights fully accorded to one group of citizens may be denied to others.

"Moreover, during the long processes of preliminary motions, original trials, petitions for rehearing, appeals, reversals on technical grounds requiring re-trials, motions before the Supreme Court and the final hearing by the highest tribunal-during all this time labor, industry, agriculture, commerce and the government itself go through an unconscionable period of uncertainty and embarrassment. And it is well to remember that during these long processes the normal operations of society and government are handicapped in many cases by differing and divided opinions in the lower courts and by the lake of any clear guide for the dispatch of business. Thereby our legal system is fast losing another essential of justice-certainty.

"Now, as an immediate step, I recommend that the Congress provide that no decision, injunction, judgment or decree on any constitutional question be promulgated by any Federal court without previsions and ample notice to the Attorney General and an opportunity for the United States to present evidence and be heard. This is to prevent court action on the constitutionally of acts of the Congress in suits between private individuals, where the government is not a party to the suit, without giving opportunity to the Government of the United States to defend the law of the land.

"I also earnestly recommend that in cases in which any court of first instance determines a question of constitutionality, the Congress provide that there shall be a direct and immediate appeal to the Supreme Court, and that such cases take precedence over all other matters pending in that Court.

"This message has dealt with four present needs: First, to eliminate congestion of calendars and to make the judiciary as a whole less static by the constant and systematic addition of new blood to its personnel; second, to make the judiciary more elastic by providing for temporary transfers of circuit and district judges to those places where Federal courts are most in arrears; third, to furnish the Supreme Court practical assistance in supervising the conduct of business in the lower courts; fourth, to eliminate inequality, uncertainty and delay now existing in the determination of constitutional questions involving Federal statutes.

"If we increase the personnel of the Federal courts so that cases may be promptly decided in the first instance and may be given adequate and prompt hearing on all appeals; if we invigorate all the courts by the persistent infusion of new blood; if we grant to the Supreme Court further power and responsibility in maintaining the efficiency of the entire Federal judiciary, and if we assure government participation in the speedier consideration and final determination of all constitutional questions, we shall go a long way toward our high objectives. If these measures achieve their aim, we may be relieved of the necessity of considering any fundamental changes in the powers of the courts or the Constitution of our government-changes which involve consequences so far-reaching as to cause uncertainty as to the wisdom of such course."

Roosevelt's news conference, of course, created a sensation. Republican opposition was up in arms. But more serious, a large section of the huge Democratic majority was dismayed. The court bill was referred to the Judiciary Committees of both houses for hearings. Judge Hatton Sumners of Texas was chairman of the House committee. He had been at the cabinet meeting when Roosevelt tossed his plan before the leaders at the White House. As Sumners left the White House that morning, several newspapermen asked him what it was all about. He told them. Then he said: "This is where I cash in my chips."

The house leaders, angry though they were, reported to Roosevelt that he had a majority for the court bill of 100 in the House. History records that the House of Representatives, elected in the landslide of 1936 reached the lowest level in character and intelligence of any House since the Civil War. Its members and its leaders were the compliant tools of Roosevelt and the hungry beggars for his bounties. Nevertheless, this bill was a little too much and while they dutifully expressed in the private polls taken by the leaders their readiness to go along, they muttered among themselves and they did not complain when Hatton Sumners determined that the House Judiciary Committee would not even hold hearings on the bill. Roosevelt and his subalterns considered taking a vote of the House to compel the Judiciary Committee to report on the court bill. They had the votes, but for some reason decided not to act, but instead decided to start hearings on the court bill in the Senate.

Not only did Roosevelt rely on his democratic resources in Congress to push the court bill through, there was another resource which Roosevelt felt he could rely on - his golden radio voice. As the opposition strengthened, Roosevelt grew more and more anxious to enter the fight, and soon he was working on two speeches. The first, with its plea for party loyalty, was made at the Democratic Victory Dinner on March 4, 1937. The second, delivered five days later, was a fireside chat in which Roosevelt asked the nation to trust him, to have faith in him and his motives. A careful examination of these two speeches sheds light on Roosevelt's true motives behind the court bill. Let's examine them at this time.

In his speeches of March 4, 1937 and March 9, 1937, Roosevelt clearly raises the issue of whether we ought not, henceforth, have a legislative, rather than a constitutional form of government.

In reference to Roosevelt's speech of March 4, 1937, Roosevelt explains why he wanted the Supreme Court increased by six members. On at least two occasions he referred, without its context, to a remark of Chief Justice Hughes:

"We are under the Constitution, but the Constitution is what the judges say it is."

Thereupon Roosevelt added, speaking of the charge that he proposes to pack the Supreme Court:

"But if by that phrase the charge is made that I will appoint justices who understand those modern conditions - that I will appoint justices who will not undertake to over-ride the judgment of the Congress on legislative policy if the appointment of such justices can be called 'packing the Court,' I say that I, and with me the vast majority of the American people, favor doing just that thing-now."

It is not the function of the courts to pass on the wisdom or unwisdom of legislative acts and the Supreme Court has repeatedly stated that its decisions are not rendered on this basis. But Roosevelt thought any opinion by the courts declaring any part of his New Deal program unconstitutional was directed against "the judgment of the Congress on its legislative policy" rather than a decision on whether such act was within the powers granted to Congress by the Constitution. Can there be much doubt from this statement that what Roosevelt was really saying is that we should change to a legislative form of government? Roosevelt obviously was not satisfied with the slow process incident to procedure under the checks of the Constitution. Roosevelt believed it to be the best policy: that when a majority of the people, under whatever stress, either of war or economic depression, or even in normal times, want particular laws, they are entitled to them - to experiment with what may happen. If the results are ill, they will still be satisfactory; for what the majority wishes, it should have. Roosevelt firmly believed he was chosen to lead the American people to a better land and a happier life; but he knew that he could only lead them into this land and life of milk and honey only if he was unhampered, by Congress, the Judiciary and the Constitution.

In this same speech, Roosevelt spoke of the Preamble to the Constitution in this fashion:

"In its Preamble the Constitution states that it was intended to form a more perfect union and promote the general welfare; and the powers given to the Congress to carry out those purposes can be best described by saying that there were all the powers needed to meet each and every problem which then had a national character and which could not be met by merely local action."

Roosevelt then adverted to the clause with reference to the laying of taxes. He said:

"But the framers went further. Having in mind that in succeeding generations many other problems then undreamed of would become national problems, they gave to Congress the ample, broad powers to levy taxes and provide for the common defense and general welfare of the United States."

It is a well established principle under American Constitutional Law that the preamble and the taxing clauses, with reference to "general welfare," have been limited by other provisions of the Constitution. Roosevelt as President and Chief Executive, must have known this principle too. Are we then to conclude from his remarks that what Roosevelt wished for was a legislative form of government, uncontrolled by the checks of the Constitution; that the majorities in Congress shall be regarded as having, with the Executive, the final word as to what laws the people shall have? With a popular and forceful President, the Legislative branch would have less influence than he; with a less influential executive, power would be centered in Congress. Roosevelt preferred this type of government power (legislative) rather than a constant check of power by the Supreme Court. The necessary consequences, of course, would be an all powerful central government with the rights of the states subordinated to Congress and the Executive, or to one of them, as circumstances at the moment would decree. We would then have government from Washington with exclusive jurisdiction over all the people of the Union. We would inevitably become a government by bureaucracy.

What further confirmation can we find for Roosevelt's desire for a purely legislative form of government? Again referring to his speech of March 4th, Roosevelt declared:

"Economic freedom for the wage earner, the farmer, and small businessman, will not wait for four years. It will not wait at all."

That declaration should be clear enough. It was a statement of what a legislative form of government can do. Roosevelt assumes the absolute necessity for what he calls "economic freedom"; an economic freedom of a kind legislated by Congress. If the Legislature was all-powerful and can pass any law without fear of reversal by the judicial branch, then their laws and decrees would be the final declaration of the rights, duties, and liabilities of all citizens.

Roosevelt, still confirming this theory, offered his analogy of the three-horse team. He declared:

"For as yet there is no definite assurance that the three-horse team of the American system of government will pull together."

Roosevelt's analogy would be sound under a legislative form of government; but it is utterly contrary to the theory of a constitutional form of government. The founding fathers seeing the danger in a centralized government, divided the powers of government between three distinct branches. They wrote:

"To have a country and a civilization, to protect ourselves within and from foes without, we must give to the Federal Government certain powers; but even if the government we are creating is a republic, we are well aware that majorities are as autocratic, unfair, and unreasonable as kings. Therefore, we must protect minorities. We, therefore, divide the powers of government between three distinct branches, none of which may control the others. We write these laws in this Constitution, setting up three guardians of our liberties, each to watch and protect against the other two. We are not harnessing a three-horse team to work in unison; we are giving to each horse a different task, and if one does a bad job, the others will repair the negligent work."

It is clear enough that when the going is heavy, three horses might do more quickly any one particular job working in unison; but what the forefathers saw was that; if the three branches worked absolutely together, it was very likely that one would, from time to time, control the action of the others. That way danger lay, and they avoided it. Roosevelt referred again to this three-horse metaphor in his March 9th speech saying:

"Two of the horses are pulling in unison today; the third is not."

Again Roosevelt knew American history and the theory of our constitutional government. He knew perfectly well that, far from unity of action being intended, the Constitution provides for the opposite results. In his speech on March 4th Roosevelt said:

"The courts, however, have cast doubts on the ability of the elected Congress to protect us against catastrophe by meeting squarely our modern social and economic conditions."

Could there be a declaration of desire for a non-constitutional form of government any clearer than is contained in those words? Roosevelt believed that Congress and the Executive alone must have the power, by legislation considered desirable at the moment, to meet current economic and social conditions. The founders of the government believed, on the contrary, that Congress may often adopt ill-advised legislation; that what may seem desirable at the moment may, in the long run, aggravate our ills and deprive us of our liberties. For that reason, the checks provided by the courts were insisted upon.

The conclusion of Roosevelt's March 9th speech confirms all the other statements. He declared:

"I am in favor of action through legislation: first, because I believe that it can be passed at this session of the Congress."

It was all summed up there. What Roosevelt wanted was a legislative form of government, without power in the courts to restrain legislation under the provisions of the Constitution.

Roosevelt in his message of March 9, 1937, repeated what he had said before that "we have only just begun to fight." Fight against whom? Against a coordinate branch of the government, the judiciary? Against the people themselves? The court bill involved a change in governmental policy and construction, a lessening of the duties of the Supreme Court, a restriction upon the control over legislation.

After analysis of the two speeches given by Roosevelt and finding the real purpose and intention behind Roosevelt's "court packing" bill, it is little wonder that the Republican leaders decided that it would be wise for them to leave this bone for the Democrats. From his sickbed in Virginia, Carter Glass began hurling whole streams of epithets at the plan which, he said, was "completely destitute of all moral understanding." Harry Bird, Millard Tydings and above all, Burton Wheeler sounded off and at a later meeting of the Democratic critics of the plan it was decided that Burton Wheeler should take the leadership of the opposition.

Wheeler had had a long and distinguished career as a courageous and honest champion of liberal causes. Like most liberals, he had been critical of the Supreme Court, but he was a believer in the Constitution and the American system, and everything in his soul rose up in rebellion against Roosevelt's audacious plan to destroy the independence of the judiciary.

Wheeler knew when he took the leadership of the opposition movement for the democrats, he was putting under Roosevelt's hand his own political death warrant which Roosevelt would not hesitate to sign. He delivered a terrific blow to the plan on the first day of the Senate hearings. The reasons given by Roosevelt for his plan publicly were wholly lacking in frankness. Since Roosevelt did not want to declare outright that he wanted to pack the Supreme Court with a batch of judges who would vote as he wished, his strategists suggested Roosevelt declare publicly the arguments for his plan were (1) that the work of the Supreme Court was too heavy for nine men to handle, (2) that the advanced age of some of the justices made it difficult for them to do the arduous work required of them, (3) that there should be an infusion of "new blood" in the Supreme Court so that the judges would be more alive to changing conditions.

On Point No. 1, Roosevelt made a ghastly mistake because, at the time Roosevelt's message was delivered to Congress, there was available a clean cut and comprehensive report on the status of the Supreme Court docket, made by Stanley Read, Solicitor-General of the Department of Justice, showing that the Supreme Court was well up with its work and that whatever delay there was, was caused by the lawyers and not by the justices.

On Point No. 2, the opponents of Roosevelt's court bill promptly pointed out that not one of the nine justices was accustomed to being absent from Court for any appreciable periods and that all were attending to their duties without suffering any great inconvenience.

Point No. 3 involved the question of whether different justices were "liberal" or "conservative" the inference being that the older justices were too conservative or "reactionary" and should be replaced by younger men who would be more "liberal."

The opponents called attention to the fact that the most liberal member of the Supreme Court, the man most quoted by the 'New Dealers', was Mr. Justice Brandeis, who happened to be the oldest member on the Court.

They also recalled the fact that side by side with Mr. Justice Brandeis in the rendering of "liberal" opinions for years was the late Mr. Justice Oliver Wendell Holmes, who was 90 years old when he resigned in 1932.

On the first day of the open hearings, which began March 10, 1937, Senator Wheeler rose and read a letter from Chief Justice Hughes, blowing to bits further Roosevelt's argument that new justices were needed to keep up with the Courts work. In the letter Chief Justice Hughes called attention to the fact that the Supreme Court's docket for the first time in many years was absolutely up to date. There were no cases lagging behind for any reason. Justice Hughes had been not merely the presiding judge, but a competent and exacting administrator of the Court's affairs. This letter completely punctured the whole pretense on which Roosevelt's court plan was based.

The Hughes letter produced consternation in the White House. Roosevelt called in his immediate White House advisers. He was angry with the strategists who had invented this shabby excuse which had now been completely deflated, and he poured out his wrath on their heads. One Roosevelt advisor suggested to him that there was nothing to do but to come out boldly and frankly with the real reason. "This," he said, "is a plan to pack the court. You have to say so frankly to the people. Until you do that you cannot advance the real arguments which you have for the plan."

Roosevelt was forced to reveal his true position that he desired the Supreme Court changed in order that he might appoint justices who would support his New Deal legislation.

It was at this point that the battle began in earnest. Roosevelt made a speech in support of his position, backed up by several members of his Cabinet and several administration Senators.

The opposition likewise went on the radio and, for a few weeks, hardly a day passed when neither was not presenting its arguments. Several Senators on the Senate Judiciary Committee issued a signed statement containing several reasons for rejecting the court bill. This statement read:

We recommend the rejection of this bill as a needless, futile, and utterly dangerous abandonment of constitutional principle.

It was presented to the Congress in a most intricate form and for reasons that obscured its real purpose.

It would not banish age from the bench nor abolish divided decisions.

It would not affect the power of any court to hold laws unconstitutional nor withdraw from any judge the authority to issue injunctions.

It would not reduce the expense of litigation nor speed the decision of cases.

It is a proposal without precedent and without justification.

It would subjugate the courts to the will of Congress and the President and thereby destroy the independence of the judiciary, the only certain shield of individual rights.

It contains the germ of a system of centralized administration of law that would enable an executive so minded to send his judges into every judicial district in the land to sit in judgment on controversies between the Government and the citizen.

It points the way to the evasion of the Constitution and establishes the method whereby the people may be deprived of their right to pass upon all amendments of the fundamental law.

It stands now before the country, acknowledged by its proponents as a plan to force judicial interpretation of the Constitution, a proposal that violates every sacred tradition of American democracy.

Under the form of the Constitution it seeks to do that which is unconstitutional.

Its 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 change of administration.

It is a measure which should be so emphatically rejected that its parallel will never again be presented to the free representatives of the free people of America.

It can be said that past presidents have appointed to the Supreme Court men of their political party and known to be in sympathy with their views. But it is one thing for a president to appoint to the bench a man of the same general political and social outlook as himself and another thing to announce in advance to the man appointed that he is appointed for the purpose of having him vote, when he is once seated on the bench, in a particular way.

Roosevelt's proposal to "pack the court" had one objective; to destroy the independence of the United States Supreme Court. And if Roosevelt was successful at destroying that independence, the independence of the other courts of the country would not survive.

The struggle for human liberty has revolved around the struggle for independent courts. The most important concession wrung from the British King by the Magna Charta was that all men should be equal before the law and the rights of every man should be protected by courts that were not mere appendages of the King. The Court of Star Chamber, infamous for its tyranny, was overthrown because it was made up of puppets of the King that did his will. When the American Constitution was presented for adoption, the memory of the tyranny to which the people had been subjected was still fresh in their minds. The People insisted that there be included in the new Constitution a bill of rights that would guarantee them freedom from arbitrary arrest, freedom of speech, freedom of the press, freedom of religious worship, freedom of assemblage, freedom from unreasonable search and seizure, freedom from conviction of crime except on a fair trial by jury, freedom, in short, to exercise all those rights which made up, in the burning words of the Declaration of Independence, the "inalienable rights to life, liberty and the pursuit of happiness."

And why did the people insist upon a guaranty of these rights being inserted in the Constitution? It was that they should become a part of the "Supreme Law of the Land" and as such, be protected by the courts against violation by either the executive or legislative branches of the Government. Thomas Jefferson writing a friend said:

"In the argument in favor of a declaration of rights, you omit one which has great weight with me, the legal check which it puts into the hands of the Judiciary. This is a body which, if rendered independent and kept strictly to their own department, merits great confidence for their learning and integrity."

Patrick Henry said:

"The Judiciary are the sole protection against a tyrannical execution of the laws. They (Congress) cannot depart from the Constitution; and their laws in opposition would be void."

James Madison, presenting to the First Congress the amendments incorporating the Bill of Rights in the Constitution said:

"If they (the rights specified in the Bill of Rights) were incorporated into the Constitution, independent tribunals of justice will consider themselves in a peculiar manner the guardians of those rights; they will be an impenetrable bulwark against every assumption of power in the Legislative or Executive; they will be naturally led to resist every encroachment upon rights stipulated for in the Constitution by the declaration of rights."

To those opposed to Roosevelt's court bill, it was more than a battle for an independent judiciary, but a battle against a centralized government and a return to tyranny.

On March 29, 1937, the Supreme Court drove another death nail into Roosevelt's court bill when they upheld the Railroad Labor Act;Footnote2 it upheld the reversed the Frazier Lemke Farm Mortgage Moratorium Law,Footnote3 both with unanimous opinions. More important still, in a five-to-four decision, with Justice Roberts now joining with the liberal members of the Supreme Court in these opinions, the Court upheld the Washington state minimum wage statuteFootnote4 by distinguishing it from its decision of a few months before on the New York Minimum Wage Law.Footnote5 Justice Roberts had moved over to the other side of the Court. The liberals were in ascendancy, and at last there appeared to be a good chance that Roosevelt would get what he wanted from the Court - the interpretation of the laws by Brandeis, Stone and Cardozo.

Then on Monday, April 12, 1937, the tide of battle turned once and for all when the Supreme Court upheld the National Labor Relations Act. At his press conference the same afternoon, Roosevelt smiled and said it had been "a pretty good day for us," but it was the death blow to his court bill. The decisions of the Supreme Court on April 12th, ended Roosevelt's second and most powerful argument - that the Supreme Court stood in the way of progress. Roosevelt now had to abandon this argument.

For two years Roosevelt had been demanding a liberal Supreme Court. Two months before, he had taken radical steps to get a liberal court by introducing the court bill. Now with these new decisions by the Supreme Court he had a liberal court. Even though Roosevelt looked pleased and happy at the press conference following the National Labor Relations Act case, the truth was that the news, with all its implications of danger to the court plan on which Roosevelt had gambled so much, came as a severe shock to him.

Roosevelt and his strategists had been expecting the Supreme Court to commit a sort of judicial hara-kiri. Roosevelt was counting on the justices for a series of conservative decisions, decisions which would surely have put a very different face on Roosevelt's fight to packing the court. Instead, the Supreme Court astonished Roosevelt, his advisors and most of the competent lawyers in the country.

Roosevelt was indeed astonished. His legal experts informed him that, in view of the Supreme Court's past decisions, adverse holdings on the National Labor Relations Act, the Social Security ActFootnote6 and other New Deal measures were foregone conclusions.

Angry as he was, Roosevelt was faced with the necessity for a prompt decision. There were three alternatives before him. He could announce that, since the Supreme Court had liberalized itself, he would abandon his plan to pack it. Or Roosevelt could intimate that, under the circumstances, he would be pleased to compromise on a smaller number of additional justices. Or he could call the Court's move "political" and press on with his original court bill.

The men closest to Roosevelt in managing the court fight began to talk of compromises. One was to limit the number of new justices to two. Another was to allow the President to appoint a justice for every man reaching the age of 75, but limiting him to one appointment a year. Roosevelt rejected the idea of compromise in spite of the advice of almost everybody around him and chose the third option, to continue the fight.

During a meeting with his strategists, Roosevelt informed them of his decision to continue by declaring "the fight must go on." He declared that the Supreme Court's change of front was a political move, that the justices could not be depended on to stay liberal, and that, in any case, the whole reversal of the Court's direction hung on one man's whim - Mr. Justice Roberts.

As previously examined, Roosevelt wanted something more than a liberal court; like Johnny Rocko in the movie, "Key Largo", he "wanted it all." He disclosed this desire to Professor William Ripley and Senator O'Mahoney. Both men had been summoned to the White House to have their fears about the court bill soothed away. Upon meeting Roosevelt both men asked why he would not compromise when he had got the liberal majority he desired on the bench. For proof they pointed to the National Labor Relations Act decisions.

Roosevelt's reply was to explain that a 5-to-4 majority was not good enough for him. He said he wanted a Supreme Court which would "co-operate" with the White House. He needed six new justices who would be friendly and approachable, men with whom he could confer, as man to man, on his great plans for social and economic reform and experiment. In his days as governor of New York, Roosevelt recalled, he had a close relationship with several members of the New York Court of Appeals, and it had worked very well. He thought that where great questions were involved, it was in the public interest to have the Supreme Court and the executive work things out together, rather than to have a long interval of uncertainty between the executive's action and the Court's reaction. As they listened to Roosevelt calmly explaining what he wanted, they could not forget the doctrine of separation of powers. They answered him the best they could, but they were so astonished that when they left Roosevelt's office, they took the trouble to compare notes on what they had heard.

Then on May 8, 1937 Justice Van Devanter one of the conservative members of the Supreme Court announced his retirement, giving Roosevelt the opportunity to appoint a judge of his own political complexion.

This presented Roosevelt with another dilemma. The Senate leaders wanted Joe Robinson appointed to the bench. But the appointment never came to Robinson, who resented this, and a coolness developed between him and the White House.Footnote7 When Justice Van Devanter announced his retirement from the bench, and with Roosevelt's unwillingness to appoint Robinson to the bench or to now compromise on the court bill, anger soon developed among his own supporters who were being forced to carry this unpopular cause. In the end he had to assure Robinson that he would have the appointment, but Robinson was stricken with a heart attack in the Senate and died shortly after, alone in his apartment.

Vice-president Garner, disgusted at the labor troubles which he attributed to Roosevelt,Footnote8 had packed up his duds and left for Texas. Roosevelt complained that Garner had left him in the lurch on the court fight. But he really had no right to complain. Roosevelt had not taken Garner or any other leader into his confidence on the court bill. He had set out to manage it himself. He had made an appalling mess of it and he now complained bitterly that Garner had deserted him. When Garner got back to Washington, he was informed by those who were still fighting his battle that it was now no longer possible to get any kind of face-saving compromise.

Following this, Garner went to the White House. He was brutally frank with Roosevelt. He told him he was licked and suggested that the best course for him was to leave the matter in Garner's hands to make the best settlement he could. Roosevelt wearily agreed. Garner went to Wheeler and asked on what terms he would settle. Wheeler replied: "Unconditional surrender."

On July 22nd, in the afternoon, Senator Logan rose on the floor of the Senate. It had been agreed that the court bill would be recommitted to the committee with the Supreme Court provisions left out of it. Senator Logan now made the motion to recommit. Hiram Johnson of California rose. He asked: "Is the Supreme Court out of this?" Senator Logan replied with an element of sadness in his voice: "The Supreme Court is out of it." Senator Johnson lifted up his hands and said: "Glory be to God!" as the galleries broke into wild applause. The court bill was dead.

Following the apparent liberalization of the Supreme Court and after defeat of the court bill, Roosevelt in a public address said: "We lost the battle [the court bill], but we won the war." Historians of our times will differ with respect to the reasons why sufficient opposition was present in Roosevelt's own political party to defeat the court bill, and also whether this opposition was able to obtain assurances that the Supreme Court, or at least a majority, in order to protect and preserve its integrity as a tribunal of justice against the court bill becoming law, decided to "cooperate" with certain New Deal policies where public interest was vitally concerned. Moreover, since this apparent compromise, the Supreme Court has rarely overthrown an act either of Congress or the States, and has cooperated with subsequent administrations in decisions opening up new fields of taxation, while thus declaring judicial neutrality in cases raising troublesome constitutional problems. As a consequence we now have a Central Government controlled and directed largely by Congress and the Chief Executive, with judicial restraint at a minimum in those fields where the people desire, through legislation, to aid themselves with federal funds or through higher wages, shorter hours, price controls of all sorts, industrial output, unionization activities, etc. In other words, State Socialism and Fascism appear to be the directions the American people took in the 1930's and are now following. It appears we now have a Federal Government with powers similar to those of the British Parliament, acting within the forms and symbols of the Constitution due to its elasticity in various of its parts, but with freedom and liberty as heretofore known in America steadily disappearing. Probably only the American people themselves can change their own direction. If they gradually swing to the right, perhaps their Supreme Court will go with them, and then we may again prefer the "old Constitutional model." But as was once said by Justice Story long ago:

"Our constitutions were all framed for man as he should be, not for man as he is and ever will be."

There were many people besides Roosevelt who believed that the Supreme Court should not have the power to nullify any act of Congress. They believe that when a majority of the Congress and the President have approved a law, it represents the will of the people and should not be set aside by "nine men," forgetting that the Constitution is intended for the protection of minorities against the usurpation's of the majority.

Much of the unconstitutional New Deal legislation enacted by Congress attempted to create additional Federal power by further restricting or entirely usurping the powers of the separate states over the matters involved. There were those among the supporters of the court bill who based their criticism of the Supreme Court upon the fact that the Court had declared a so-called "twilight zone" in which both the State and the Federal Government are powerless to act. We should be eternally grateful that the Constitution does create a twilight zone which protects the rights of the humblest citizen against invasion by either Federal or State government. The right of trial by jury, religious liberty, personal freedom and security, freedom of speech and the press are all in the twilight zone; also the right to private property. This latter was the right to which objection was most frequently made by Roosevelt.

It is substantially clear that the real purpose behind the court bill was not to compensate for the infirmities of age, but to secure the appointment of a sufficient number of new Justices to the Supreme Court to insure that the New Deal legislation desired by Roosevelt would be sustained as to its constitutionality.

Failing in this attempt to "pack to court", the Congress on August 24, 1937 passed an act entitled "An Act to provide for intervention by the United States, by direct appeals to the Supreme Court, ... and for other purposes. Section 1 of the Act reads:

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That whenever the constitutionality of any Act of Congress affecting the public interest is drawn in question in any court of the United States in any suit or proceeding to which the United States, ... is not a party, the court having jurisdiction of the suit or proceeding shall certify such fact to the Attorney General. In any such case the court shall permit the United States to intervene and become a party for presentation of evidence ... and argument upon the question of the constitutionality of such Act. In any suit or proceeding the United States shall,...have all rights of a party and the liabilities of a party as to court costs to the extent necessary for a proper presentation of the facts and law relating to the constitutionality of such Act.Footnote9

If Roosevelt could not prevent the Supreme Court from declaring any act of Congress unconstitutional, perhaps this Act would prevent or make it harder for an individual to challenge the constitutionality of any act passed by Congress.

Footnote1

See Chapter 7.

Footnote2

Virginia Railway Co. v. system Federation No. 40, 300 U.S. 515 (1937).

Footnote3

Wright v. Vinton Branch of the Mountain Trust Bank of Roanoke, 300 U.S. 440 (1937).

Footnote4

West Coast Hotel v. Parrish, 300 U.S. 379 (1937). See: Chapter 11.

Footnote5

Morehead v. People ex rel. Tipaldo, 298 U.S. 587 (1936). See: Chapter 11.

Footnote6

The Supreme Court's decision on the social security act is examined in volume II of this work.

Footnote7

Hugo Black was appointed to the Supreme Court August 17, 1937.

Footnote8

During the later part of 1936, a new strategy was developed by the national labor unions which was secretly endorsed by Roosevelt. This strategy was the now famous "sit-down" technique used during a strike. These union leaders and Roosevelt adopted this technique as a way to create enough labor strife in the country, whereby, forcing the Supreme Court into a position of adopting an expanded interpretation of the commerce clause, giving the Federal government exclusive jurisdiction over all parties involved in the strike, under the government's claim that the strike or threat of strike would cause a burden to the "flow" or "stream" of commerce. All of the decisions of the Supreme Court in the National Labor Relations Act cases (reviewed in Chapter 12) involved striking employees or a threat by the employees to go on strike if the employer refused to adopt the collective bargaining features of the National Labor Relations Act.

Footnote9

50 Stat. 751.