When Roosevelt Tried to ‘Pack’ the High Court

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By Ken Zurski

On February 5, 1937, President Franklin Delano Roosevelt announced his plan to expand the Supreme Court to as many as 15 justices. His intentions were blatantly political. Roosevelt was trying to “pack” the court, Republicans argued, and in turn make the nation’s highest court a completely liberal entity.

Roosevelt embraced the criticism and mostly ignored it. Although politically it was still a hot button issue, his New Deal policies had earned public acceptance, even praise. As president, he reached for the stars.

Here’s why it mattered to Roosevelt. The high court had previously struck down several key pieces of his New Deal legislation on the grounds that the laws delegated an unconstitutional amount of authority in government, specifically the executive branch, but especially the office of the president.

President Franklin Delano Roosevelt

Roosevelt won the 1936 election in a landslide and was feeling a bit emboldened. If he could pack the court, he could win a majority every time. The president proposed legislation which in essence asked current Supreme Court justices to retire at age 70 with full pay or be appointed an “assistant” with full voting rights, effectively adding a new justice each time.

This initiative would directly affect the 75-year-old Chief Justice, Charles Evan Hughes, a Republican from New York and a former nominee for president in 1916 who narrowly lost to incumbent Woodrow Wilson. Hughes resigned his post as a Supreme Court Justice to run for president, then served as Secretary of State under the Harding administration. In 1930, he was nominated by Herbert Hoover to return to the high court as Chief Justice. Hughes had sworn in Roosevelt twice. Now he was being asked by the president to give up his post.

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Chief Justice Hughes

In May of 1937, however, Roosevelt realized his “court packing” idea was wholly unnecessary. Two justices, including Hughes, jumped over to the liberal side of the argument and by a narrow majority upheld as constitutional the National Labor Relations Act and the Social Security Act, two of the administration’s coveted policies. Roosevelt never brought up the issue of the court size again.

But his power move didn’t sit well with the press.

Newspaper editorials criticized him for it and the public’s favor he had enjoyed after two big electoral victories was waning.  Then Germany invaded Poland. Roosevelt’s steady leadership was lauded in a world at war. In 1940, he ran for an unprecedented third term in office and won easily.

The following year, Japan attacked Pearl Harbor.

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