Supreme Court and Packing

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The Supreme Court of 1935 (top row left to right – Owen Roberts, Pierce Butler, Harlan Stone, Benjamin Cardoza) (Bottom Row left to right – Louis Brandeis, Willis Van Devanter, Chief Justice Charles Hughes, James McReynolds, George Sutherland)

In 1935, America was in the throes of the Great Depression. Unemployment was seventeen percent, down from a high of twenty-five percent. Social Security was enacted, along with a federal minimum wage, restrictions on child labor, a transition from the gold standard, and more power to the labor unions. Franklin D. Roosevelt, in his first term as president, took office on March 4, 1932, at the worst point of the economic crisis. Hoover was ineffective, and Roosevelt took immediate action through executive orders and legislation, the sum of which embodied the “New Deal”, to turn the economy and the nation around. Some of these are well known, like the Civilian Conservation Corps (CCC) that built roads, bridges, and improved the infrastructure of the country. Others like the National Industrial Recovery Act that created the National Recovery Administration(NRA) are less well known. Roosevelt reasoned that massive government intervention was needed, particularly as the economy improved 1933-36, but then slid into a deep recession in 1937-38.

Roosevelt proposed that if business and labor worked together, an economic improvement could come quickly. To accomplish this, the NRA set price and wage targets, causing some businesses to pay higher wages than they could reasonably afford while limiting the maximum number of hours for workers. In Panama Refining Co. v. Ryan, the Supreme Court ruled that the NRA was unconstitutional, violating the separation of powers by giving the President power over the interstate commerce regulation of the oil industry.

Roosevelt wanted the entire New Deal enacted, and the Supreme Court thwarted him on constitutional grounds in three cases, Schechter Poultry Corp. v. United States which put the final nail in the coffin of the NRA, Humphrey’s Executor v. United States in which Roosevelt unlawfully fired the FTC commissioner, and  Louisville Joint Stock Land Bank v. Radford which struck down Roosevelt’s attempt to aid farmers through the 1934 Frazier-Lemke Farm Bankruptcy Act  (allowed farmers to re-acquire farms lost through foreclosure). Owen Roberts was the pivotal vote in these cases.

Frustrated, Roosevelt cast about for a way to gain more favorable rulings for his programs. The court at the time was composed of four conservative justices, known as the “Four Horsemen” (Pierce ButlerJames Clark McReynoldsGeorge Sutherland, and Willis Van Devanter), and Chief Justice Charles Evan Hughes, Owen Roberts,  Benjamin N. Cardozo, Louis Brandeis, and Harlan F. Stone. Hughes, Cardozo, and Roberts were Hoover appointees, Brandeis a Wilson appointee, and Stone was appointed by Roosevelt.

Lincoln and the Supreme Court

Abraham Lincoln, photograph by Matthew Brady

In 1864, Lincoln was up for re-election, running against the pitiful Civil War general, George B. McClellan. McClellan was willing to work a deal with the Confederates to get peace and allow the nation to split and leave millions in slavery. Lincoln was having none of it and won in a landslide. His goal was to preserve the Union. BUT – Roger Taney, chief justice of the US Supreme Court, and author of the terribly flawed Dred Scott decision died October 12, 1864. The presidential election was to be held on November 8, less than a month later. Lincoln appointed Salmon P. Chase as Chief Justice – and he did do it AFTER the election. Chase wanted to challenge Lincoln in the election. To prevent splitting the Republican vote, and a possible Democratic victory, Lincoln agreed to appoint Chase to the Supreme Court, in return for Chase’s support campaigning FOR Lincoln. It worked. Chase threw his support behind Lincoln. The Republicans dominated the Senate, 32 to 10. BUT – people forget that back then, the President-elect did not take office until March 4, 1865. So Lincoln in fact appointed and confirmed a new chief justice before his first term expired, and before the new Senate was seated – and likely would have done so even if McClellan had won. Chase was nominated on December 6, 1864, and confirmed on Dec. 15, 1864. Lincoln’s appointment of Chase was a huge boon to black people since Chase favored equal rights for blacks.

Resolved, That this convention does explicitly declare, as the sense of the American people, that after four years of failure to restore the Union by the experiment of war, during which, under the pretense of military necessity of war-power higher than the Constitution, the Constitution itself has been disregarded in every part, and public liberty and private right alike trodden down, and the material prosperity of the country essentially impaired, justice, humanity, liberty, and the public welfare demand that immediate efforts be made for a cessation of hostilities, with a view of an ultimate convention of the States, or other peaceable means, to the end that, at the earliest practicable moment, peace may be restored on the basis of the Federal Union of the States.”

Democratic Platform 1864

Many people today think the U.S. Constitution sets the number of Supreme Court justices, but it does not. Article III establishes the court system, including the Supreme Court. The Judiciary Act of 1789, signed into law by President George Washington on Sept. 24, 1789, assigned six justices to the Supreme Court. The number of justices is fixed by Congressional legislation. In the election of 1800, the Federalists lost, and the number of justices was changed to five by the outgoing “lame-duck” Congress, to prevent Jefferson from making an appointment. The incoming Democratic-Republican Congress wasn’t having any of that, and set the number to six again, later further expanding it to seven. In 1837, Congress expanded the number to nine, to allow Andrew Jackson, first Democrat and proponent of slavery, to appoint two justices favorable to the Democratic party. During the Civil War, the number expanded to ten justices, to assure a pro-Union majority. In July, 1866 under Andrew Johnson, Congress reduced the number to seven.

A case decided under this seven-member Supreme Court, Hepburn v. Griswold, allowed usage of “greenbacks” as legal tender, in substitution of gold and silver coins, due to legislation passed during the Civil War, allowing the government to issue the paper currency. As soon as Grant, a Republican, took office, the Supreme Court expanded under the Judicial Act of 1869 to nine justices, allowing Grant to appoint two justices favorable to his point of view, and Hepburn v. Griswold was reversed. The number of justices has remained fixed since 1869 – but not for lack of trying.

Roosevelt, a Democrat, hit upon the idea of expanding the court to get justices more favorable to his economic and social programs, and to expanding the power of the presidency. He proposed Judicial Procedures Reform Bill of 1937, whose central provision 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 and 6 months. It was a way to get around the fact that justices are appointed for life, or until they voluntarily retire. It would have virtually assured that the president could stack the court in favor of his policies, forever. The bill came to be known as Roosevelt’s “court-packing plan,” a phrase coined by Edward Rumely, an Indiana journalist.

Even many Democrats, including Vice President John Nance Garner opposed it. Roosevelt thought that his tremendous popularity and the landslide victory of November 1936 served as a mandate for his programs, and attempted to persuade Congress and the people in one of his famous “Fireside Chats” on March 9, 1937.

Roosevelt did not succeed in expanding the court; the chairman of the Senate Judiciary Committee, a Democrat, delayed consideration of the bill for almost six months. During that time, the bill’s major sponsor, Senate majority leader Joseph Robinson(D) died. However, retirements and deaths of the Supreme Court accomplished the same purpose, allowing Roosevelt to appoint all but two of the sitting justices, creating a liberal-leaning court until Eisenhower’s appointment of five judges during his two terms.

The Supreme Court today

The current Supreme Court is composed of Chief Justice John Roberts, appointed by George Bush Jr., Clarence Thomas, appointed by George Bush Jr., Stephen Breyer, appointed by Bill Clinton, Samuel Alioto appointed by George Bush Jr., Sonia Sotomayor, and Elena Kagen, both appointed by Barack Obama, Neil Gorsuch and Brett Kavanaugh, both appointed by Donald Trump. Of these justices, Stephen Breyer, Sonia Sotomayor, and Elena Kagan are generally viewed as “liberal”, and the remainder conservative, though Chief Justice Roberts has voted with the liberal bloc on several occasions, notably concerning abortion and homosexual rights. Recently deceased Ruth Bader Ginsburg was part of the liberal coalition. The current controversy over the nomination of Amy Barrett stems from the fear that she would rule against the liberal bloc in matters of health care, abortion, and homosexual rights, and make an unbalanced court. This fear over a tilt to the conservative side has resurrected the idea of “court-packing” if the presidential election were to go to the Democrats. Presidential nominee Joe Biden has acknowledged past statements declaring that he was “not a fan” of court-packing, but has refused to say what he might consider if elected President.