How FDR’s Court-Packing Plan Set Progressive Policies Back by 25 Years

           As Democrats imagine what they might do with political power should they gain control of the White House and Congress after 2020, some progressives have been arguing that Democrats are justified in expanding the size of the Supreme Court.  A recent Washington Post piece discusses the politics emerging in the Democratic primary campaigns around this issue.  Other liberals have pushed back against the idea (for some examples, see here and here).  In light of this emerging debate, I want to highlight certain less-familiar aspects of the law and politics surrounding FDR’s failed Court-packing proposal of 1937.   The circumstances favoring FDR’s Court-packing plan would seem to be about as favorable as might be imagined, yet FDR not only lost the Court-packing battle, that loss was politically devastating for the New Deal overall.  

          First, let’s recall just how breathtaking and profound the Court’s conflict was in that era with FDR’s and Congress’ policies.  The major highlights are widely known and still taught in law schools – the Court’s invalidation of the National Industrial Recovery Act (NIRA) or the Agricultural Adjustment Act (AAA).   

          But here is a sense of the range of national and state legislation and presidential action the Court held unconstitutional in one 17-month period starting in January, 1935: the NIRA, both its Codes of Fair Competition and the president’s power to control the flow of contraband oil across state lines; the Railroad Retirement Act; the Frazier-Lemke Farm Mortgage Moratorium Act; the effort of the president to get the administrative agencies to reflect his political vision (Humphrey’s Executor); the Home Owners’ Loan Act; a federal tax on liquor dealers; the AAA; efforts of the new SEC’s attempt to subpoena records to enforce the securities laws; the Bituminous Coal Conservation  Act; the Municipal Bankruptcy Act, which Congress passed to enable local governments to use the bankruptcy process; and, perhaps most dramatically, in Morehead v. Tipaldo, minimum-wage laws on the books in a third of the states, in some cases, for decades.  Some of these decisions have withstood the test of time, but most, of course, have not.        

          In the summer of 1935, more than 100 district judges held Acts of Congress unconstitutional.  Earlier work suggests the courts issued more than 1,600 injunctions against New Deal legislation, but a recent talk I heard by Professor Barry Cushman put that figure at more than twice that number.  Moreover, at least some of these issues had direct and obvious effects on the average person; a window into the salience of the Court’s actions is provided in the comments of the founder of the ACLU, at a town meeting, who said: “Something is seething in America today. . . We are either going to get out of this mess by a change in the Court or with machine guns on street corners.”  What would the modern Court have to do, and in what context, that would come close to all this?

Second, FDR was in as strong a political position as any President has ever been in the modern era.  He had just won 60.8% of the popular vote, the largest popular majority ever at the time.  In the electoral college, he had won 98.5% of the electoral votes (all but the eight votes of ME and VT).  The Court-packing bill was the first piece of legislation FDR put forward after this massive 1936 electoral triumph.  And the 1936 elections were a sweep for the Democrats in the House and Senate, too.  In the Senate, the Democrats held 76 Senate seats, Republicans just 16 (sorry AK and HW, you weren’t states yet).  In the House, Democrats had a 334-88 advantage.  Of course, the political parties of that era were far from as ideologically coherent as today’s parties, with the Democratic Party containing both conservative Southern Democrats, urban-machine Democrats, and Democrats from Western states.  But even so, FDR’s electoral “mandate” was unmatched, then or now.

Yet despite FDR’s popularity and the Court’s actions, almost as soon as he announced the Court-packing bill, two-thirds of the newspapers that had endorsed FDR came out vociferously against the plan.  This response was geographically widespread, bipartisan, and intense.  The most common charge was that FDR was seeking “dictatorial powers,” a particularly resonant charge in that era.  Telegrams to Congress, a leading gauge of public opinion at the time, flowed overwhelmingly, and with passionate intensity, against the plan.  Some leading Progressive Democrats in the Senate, like Hiram Johnson and George Norris, quickly bolted from FDR and defended the Court’s independence; conservative Democrats wanted no part of the plan; a leading Western Democrat, Senator Burton Wheeler, announced he would lead the fight against the plan; FDR’s Vice President did little to conceal his disdain for Court packing; Republicans sat silently and let the Democratic Party tear itself apart.  And the Court, too, has tools to fight back: Chief Justice Hughes sent a letter, with devastating effect, to the Senate Judiciary committee that took apart FDR’s justifications for Court packing.  

Why was FDR’s decision to engage Court-packing so destructive politically for him and the rest of his domestic agenda?  The simple answer is that, even for the most popular President in modern political history --at the zenith of his popularity -- changing the size of the Court for political reasons was widely viewed as a dangerous form of political over-reaching. 

Finally, and perhaps most importantly, when FDR lost the Court-packing fight, he didn’t just lose that one battle:  that battle was politically catastrophic for much of the rest of his domestic political agenda.  Indeed, the fight over Court packing largely killed the progressive legislative agenda until the 1960s.  As FDR’s second vice president, Henry Wallace, observed in looking back at these events: “The whole New Deal really went up in smoke as a result of the Supreme Court fight.”  The next major item on FDR’s agenda had been national health-care; after the Court-packing fight, FDR felt forced to drop the issue.  As a Fortune magazine poll in July 1937 put it: “The Supreme Court struggle had cut into the President’s popularity as no other issue ever had.”  The Republican Party had been declared virtually dead in the wake of the 1936 elections.  But in the 1938 mid-terms, the Democratic Party lost 71 House seats, 6 Senate seats, and 12 governorships; nationwide, the two parties divided the congressional vote almost evenly (all the more remarkable because the Democratic Party had a near monopoly in the South).

Many lawyers are unlikely to be aware of the political ramifications of the Court-packing fight.  The way this issue is taught in the court-centric law schools, FDR lost the battle, but won the war.  The Supreme Court did turn his way and came to accept the constitutionality of the New Deal.  But that was mainly because FDR prevailed through the ordinary political process in appointing sympathetic Justices.  Between 1937 and 1943, he was fortunate enough to be able to appoint a remarkable number of Justices – seven – to the Court.     

       

Of course, present circumstances are never precisely the same as the past.  Today’s Democratic Party, which still must win moderate House districts to control the House and is divided between moderate and more liberal factions, is nonetheless nowhere nearly as ideologically divided as in the 1930s.  But then, today’s Republican Party is also more ideologically unified than in the 1930s as well.  In addition, the Court’s size has been fixed at nine since 1868, with FDR’s failure now having contributed an additional 80 plus years to that institutional settlement.   

But if debates about Court-packing move from campaign rhetoric to potential legislation, it is worth being aware that when the most popular president in history, with a Congress his party controlled overwhelmingly, clashed with the Court that was the most aggressive in American history in pervasively challenging national political power, FDR not only failed to get Court-packing legislation enacted, the effort generated a political firestorm that cost FDR the rest of his domestic agenda.   

[Parts of this posting are taken from my article, Institutional Formalism and Realism in Constitutional and Public Law, 2013 Supreme Court Review 1]