Sunday, February 5, 2017



Washington, D.C. (JFK+50)  Eighty years ago today, February 5, 1937, President Franklin D. Roosevelt announced proposals to Congress known as the Judicial Procedures Reform Bill.

The plan would have allowed the President of the United States to appoint one new, younger judge for each federal judge with 10 years of service who did not retire or resign within 6 months after reaching the age of 70.  The President, however, would be limited to appointing no more than 6 Supreme Court Judges and no more than 2 to any lower federal court.  The Court itself could be increased from 9 to 15 justices.

FDR's proposals followed invalidation of some New Deal legislation by the High Court.  In January 1935, the Court had struck down a provision of the National Industrial Recovery Act (NIRA) by a 8-1 vote.  That was followed by the invalidation of the Railroad Retirement Act and three additional anti-New Deal rulings on May 27, 1935.

The President turned to his legal team, described by Richard G. Menaker as being "among the most constitutionally savvy lawyers in the administration."
And characteristically, FDR addressed the American people directly on the issue.  In his Fireside Chat of March 9, 1937 FDR said that the Supreme Court was...

"reading into the Constitution words and implications which are not there, and which were never there."

and called for 

"action to save the Constitution from the Court and the Court from itself."

Despite FDR's popularity and landslide re-election in 1936, Gallup polls showed 46% of Americans were opposed to FDR's "court-packing plan."

The President was particularly upset with conservative Supreme Court justices who consistently voted against government regulation.  Known as the "Four Horsemen," they included Justices Butler, McReynolds, Sutherland and Van Devanter.  Chief Justice Charles Evans Hughes, although also a conservative, was more open to government regulation.

FDR's proposals quickly bogged down in the Senate Judiciary Committee, but on March 29th the Supreme Court reversed direction and supported New Deal legislation in 3 separate cases.

Despite this turn-around by the Court, on June 14th the Judiciary Committee called FDR's plan "a needless, futile and utterly dangerous abandonment of constitutional principles...without precedent or justification."

On July 22nd, the United States Senate voted 70-20 to send FDR's proposals back to committee where it was revised to exclude the provisions pertaining to the replacement of federal judges or justices.  The revised bill passed Congress and was signed by the President on August 26, 1937.

In concluding what Richard G. Menaker calls "one of the stranger chapters in constitutional history," FDR was left with a humiliating defeat, but Chief Justice William Rehnquist argues the President...

"won the war for control of the Supreme serving (as POTUS) for more than 12 years (and) appointing 8 of the 9 justices" of the High Court.


"FDR's Court-Packing Plan:  A Study in Irony," by Richard G. Menaker, The Gilder Lehrman Institute of American History,

"Judicial Procedures Reform Bill of 1937,"

United States Supreme Court (1932-1937)
US Supreme Court Photo