Judicial Procedures Reform Bill of 1937

Following the Wall Street Crash of 1929 and the onset of the Great Depression, Franklin Roosevelt won the 1932 presidential election on a promise to give America a "New Deal" to promote national economic recovery. The 1932 election also saw a new Democratic majority sweep into both houses of Congress, giving Roosevelt legislative support for his reform platform. Both Roosevelt and the 73rd Congress called for greater governmental involvement in the economy as a way to end the depression.[17] During the president's first term, a series of successful challenges to various New Deal programs were launched in federal courts. It soon became clear that the overall constitutionality of much of the New Deal legislation, especially that which extended the power of the federal government, would be decided by the Supreme Court.

Associate Justice Oliver Wendell Holmes Jr. Holmes's loss of half his pension pay due to New Deal legislation after his 1932 retirement is believed to have dissuaded Justices Van Devanter and Sutherland from departing the bench.

A minor aspect of Roosevelt's New Deal agenda may have itself directly precipitated the showdown between the Roosevelt administration and the Supreme Court. Shortly after Roosevelt's inauguration, Congress passed the Economy Act, a provision of which cut many government salaries, including the pensions of retired Supreme Court justices. Associate Justice Oliver Wendell Holmes Jr., who had retired in 1932, saw his pension halved from $20,000 to $10,000 per year.[18] The cut to their pensions appears to have dissuaded at least two older Justices, Willis Van Devanter and George Sutherland, from retirement.[19] Both would later find many aspects of the New Deal unconstitutional.

The flurry of new laws in the wake of Roosevelt's first hundred days swamped the Justice Department with more responsibilities than it could manage.[20] Many Justice Department lawyers were ideologically opposed to the New Deal and failed to influence either the drafting or review of much of the White House's New Deal legislation.[21] The ensuing struggle over ideological identity increased the ineffectiveness of the Justice Department. As Interior Secretary Harold Ickes complained, Attorney General Homer Cummings had "simply loaded it [the Justice Department] with political appointees" at a time when it would be responsible for litigating the flood of cases arising from New Deal legal challenges.[22]

Compounding matters, Roosevelt's congenial Solicitor General, James Crawford Biggs (a patronage appointment chosen by Cummings), proved to be an ineffective advocate for the legislative initiatives of the New Deal.[23] While Biggs resigned in early 1935, his successor Stanley Forman Reed proved to be little better.[20]

This disarray at the Justice Department meant that the government's lawyers often failed to foster viable test cases and arguments for their defense, subsequently handicapping them before the courts.[21] As Chief Justice Charles Evans Hughes would later note, it was because much of the New Deal legislation was so poorly drafted and defended that the court did not uphold it.[21]

Popular understanding of the Hughes Court, which has some scholarly support, has typically cast it as divided between a conservative and liberal faction, with two critical swing votes. The conservative Justices Pierce Butler, James Clark McReynolds, George Sutherland and Willis Van Devanter were known as "The Four Horsemen". Opposed to them were the liberal Justices Louis Brandeis, Benjamin Cardozo and Harlan Fiske Stone, dubbed "The Three Musketeers". Chief Justice Charles Evans Hughes and Justice Owen Roberts were regarded as the swing votes on the court.[24] Some recent scholarship has eschewed these labels since they suggest more legislative, as opposed to judicial, differences. While it is true that many rulings of the 1930s Supreme Court were deeply divided, with four justices on each side and Justice Roberts as the typical swing vote, the ideological divide this represented was linked to a larger debate in U.S. jurisprudence regarding the role of the judiciary, the meaning of the Constitution, and the respective rights and prerogatives of the different branches of government in shaping the judicial outlook of the Court. At the same time, however, the perception of a conservative/liberal divide does reflect the ideological leanings of the justices themselves. As William Leuchtenburg has observed:

Some scholars disapprove of the terms "conservative" and "liberal", or "right, center, and left", when applied to judges because it may suggest that they are no different from legislators; but the private correspondence of members of the Court makes clear that they thought of themselves as ideological warriors. In the fall of 1929, Taft had written one of the Four Horsemen, Justice Butler, that his most fervent hope was for "continued life of enough of the present membership ... to prevent disastrous reversals of our present attitude. With Van [Devanter] and Mac [McReynolds] and Sutherland and you and Sanford, there will be five to steady the boat ..."[25]

Whatever the political differences among the justices, the clash over the constitutionality of the New Deal initiatives was tied to clearly divergent legal philosophies which were gradually coming into competition with each other: legal formalism and legal realism.[26] During the period c. 1900 – c. 1920, the formalist and realist camps clashed over the nature and legitimacy of judicial authority in common law, given the lack of a central, governing authority in those legal fields other than the precedent established by case law—i.e. the aggregate of earlier judicial decisions.[26]

This debate spilled over into the realm of constitutional law.[26] Realist legal scholars and judges argued that the constitution should be interpreted flexibly and judges should not use the Constitution to impede legislative experimentation. One of the most famous proponents of this concept, known as the Living Constitution, was U.S. Supreme Court justice Oliver Wendell Holmes Jr., who said in Missouri v. Holland the "case before us must be considered in the light of our whole experience and not merely in that of what was said a hundred years ago".[27][28] The conflict between formalists and realists implicated a changing but still-persistent view of constitutional jurisprudence which viewed the U.S. Constitution as a static, universal, and general document not designed to change over time. Under this judicial philosophy, case resolution required a simple restatement of the applicable principles which were then extended to a case's facts in order to resolve the controversy.[29] This earlier judicial attitude came into direct conflict with the legislative reach of much of Roosevelt's New Deal legislation. Examples of these judicial principles include:

• the early-American fear of centralized authority which necessitated an unequivocal distinction between national powers and reserved state powers;
• the clear delineation between public and private spheres of commercial activity susceptible to legislative regulation; and
• the corresponding separation of public and private contractual interactions based upon "free labor" ideology and Lockean property rights.[30]

At the same time, developing modernist ideas regarding politics and the role of government placed the role of the judiciary into flux. The courts were generally moving away from what has been called "guardian review" — in which judges defended the line between appropriate legislative advances and majoritarian encroachments into the private sphere of life—toward a position of "bifurcated review". This approach favored sorting laws into categories that demanded deference towards other branches of government in the economic sphere, but aggressively heightened judicial scrutiny with respect to fundamental civil and political liberties.[31] The slow transformation away from the "guardian review" role of the judiciary brought about the ideological—and, to a degree, generational—rift in the 1930s judiciary. With the Judiciary Bill, Roosevelt sought to accelerate this judicial evolution by diminishing the dominance of an older generation of judges who remained attached to an earlier mode of American jurisprudence.[30][32]

Chief Justice Charles Evans Hughes. Hughes believed the primary objection of the Supreme Court to the New Deal was its poorly drafted legislation.

Just three weeks after its defeat in the railroad pension case, the Roosevelt administration suffered its most severe setback, on May 27, 1935: "Black Monday".[38] Chief Justice Hughes arranged for the decisions announced from the bench that day to be read in order of increasing importance.[38] The Supreme Court ruled unanimously against Roosevelt in three cases:[39] Humphrey's Executor v. United States, Louisville Joint Stock Land Bank v. Radford, and Schechter Poultry Corp. v. United States.

Attorney General Homer Stillé Cummings. His failure to prevent poorly drafted New Deal legislation from reaching Congress is considered his greatest shortcoming as Attorney General.[21]

With several cases laying forth the criteria necessary to respect the due process and property rights of individuals, and statements of what constituted an appropriate delegation of legislative powers to the President, Congress quickly revised the Agricultural Adjustment Act (AAA).[40] However, New Deal supporters still wondered how the AAA would fare against Chief Justice Hughes's restrictive view of the Commerce Clause from the Schechter decision.

As early as the autumn 1933, Roosevelt had begun anticipation of reforming a federal judiciary composed of a stark majority of Republican appointees at all levels.[42] Roosevelt tasked Attorney General Homer Cummings with a year-long "legislative project of great importance".[43] Justice Department lawyers then commenced research on the "secret project", with Cummings devoting what time he could.[43] The focus of the research was directed at restricting or removing the Supreme Court's power of judicial review.[43] However, an autumn 1935 Gallup Poll had returned a majority disapproval of attempts to limit the Supreme Court's power to declare acts unconstitutional.[44] For the time being, Roosevelt stepped back to watch and wait.[45]

Other alternatives were also sought: Roosevelt inquired about the rate at which the Supreme Court denied certiorari, hoping to attack the Court for the small number of cases it heard annually. He also asked about the case of Ex parte McCardle, which limited the appellate jurisdiction of the Supreme Court, wondering if Congress could strip the Court's power to adjudicate constitutional questions.[43] The span of possible options even included constitutional amendments; however, Roosevelt soured to this idea, citing the requirement of three-fourths of state legislatures needed to ratify, and that an opposition wealthy enough could too easily defeat an amendment.[46] Further, Roosevelt deemed the amendment process in itself too slow when time was a scarce commodity.[47]

Attorney General Cummings received novel advice from Princeton University professor Edward S. Corwin in a letter of December 16, 1936. Corwin had relayed an idea from Harvard University professor Arthur N. Holcombe, suggesting that Cummings tie the size of the Supreme Court's bench to the age of the justices since the popular view of the Court was critical of their age.[48] However, another related idea fortuitously presented itself to Cummings as he and his assistant Carl McFarland were finishing their collaborative history of the Justice Department, Federal justice: chapters in the history of justice and the Federal executive. An opinion written by Associate Justice McReynolds—one of Cumming's predecessors as Attorney General, under Woodrow Wilson—had made a proposal in 1914 which was highly relevant to Roosevelt's current Supreme Court troubles:

Judges of the United States Courts, at the age of 70, after having served 10 years, may retire upon full pay. In the past, many judges have availed themselves of this privilege. Some, however, have remained upon the bench long beyond the time that they are able to adequately discharge their duties, and in consequence the administration of justice has suffered. I suggest an act providing that when any judge of a federal court below the Supreme Court fails to avail himself of the privilege of retiring now granted by law, that the President be required, with the advice and consent of the Senate, to appoint another judge, who would preside over the affairs of the court and have precedence over the older one. This will insure at all times the presence of a judge sufficiently active to discharge promptly and adequately the duties of the court.[49]

The content of McReynolds's proposal and the bill later submitted by Roosevelt were so similar to each other that it is thought the most probable source of the idea.[50] Roosevelt and Cummings also relished the opportunity to hoist McReynolds by his own petard.[51] McReynolds, having been born in 1862,[52] had been in his early fifties when he wrote his 1914 proposal, but was well over seventy when Roosevelt's plan was set forth.

The provisions of the bill adhered to four central principles:

• allowing the President to appoint one new, younger judge for each federal judge with 10 years service who did not retire or resign within six months after reaching the age of 70 years;
• limitations upon the number of judges the President could appoint: no more than six Supreme Court justices, and no more than two on any lower federal court, with a maximum allocation between the two of 50 new judges just after the bill is passed into law;
• that lower-level judges be able to float, roving to district courts with exceptionally busy or backlogged dockets; and
• lower courts be administered by the Supreme Court through newly created "proctors".[53]

The latter provisions were the result of lobbying by the energetic and reformist judge William Denman of the Ninth Circuit Court who believed the lower courts were in a state of disarray and that unnecessary delays were affecting the appropriate administration of justice.[54][55] Roosevelt and Cummings authored accompanying messages to send to Congress along with the proposed legislation, hoping to couch the debate in terms of the need for judicial efficiency and relieving the backlogged workload of elderly judges.[56]

The choice of date on which to launch the plan was largely determined by other events taking place. Roosevelt wanted to present the legislation before the Supreme Court began hearing oral arguments on the Wagner Act cases, scheduled to begin on February 8, 1937; however, Roosevelt also did not want to present the legislation before the annual White House dinner for the Supreme Court, scheduled for February 2.[57] With a Senate recess between February 3–5, and the weekend falling on February 6–7, Roosevelt had to settle for February 5.[57] Other pragmatic concerns also intervened. The administration wanted to introduce the bill early enough in the Congressional session to make sure it passed before the summer recess, and, if successful, to leave time for nominations to any newly created bench seats.[57]

After the proposed legislation was announced, public reaction was split. Since the Supreme Court was generally conflated with the U.S. Constitution itself,[58] the proposal to change the Court brushed up against this wider public reverence.[59] Roosevelt's personal involvement in selling the plan managed to mitigate this hostility. In a Democratic Victory Dinner speech on March 4, Roosevelt called for party loyalists to support his plan.

Roosevelt followed this up with his ninth Fireside chat on March 9, in which he made his case directly to the public. In his address, Roosevelt decried the Supreme Court's majority for "reading into the Constitution words and implications which are not there, and which were never intended to be there".[60] He also argued directly that the Bill was needed to overcome the Supreme Court's opposition to the New Deal, stating that the nation had reached a point where it "must take action to save the Constitution from the Court, and the Court from itself".[60]

Through these interventions, Roosevelt managed briefly to earn favorable press for his proposal.[61] In general, however, the overall tenor of reaction in the press was negative. A series of Gallup Polls conducted between February and May 1937 showed that the public opposed the proposed bill by a fluctuating majority. By late March it had become clear that the President's personal abilities to sell his plan were limited:

Over the entire period, support averaged about 39%. Opposition to Court packing ranged from a low of 41% on 24 March to a high of 49% on 3 March. On average, about 46% of each sample indicated opposition to President Roosevelt's proposed legislation. And it is clear that, after a surge from an early push by FDR, the public support for restructuring the Court rapidly melted.[62]

Concerted letter-writing campaigns to Congress against the bill were launched with opinion tallying against the bill nine-to-one. Bar associations nationwide followed suit as well lining up in opposition to the bill.[63] Roosevelt's own Vice President John Nance Garner expressed disapproval of the bill holding his nose and giving thumbs down from the rear of the Senate chamber.[64] The editorialist William Allen White characterized Roosevelt's actions in a column on February 6 as an "elaborate stage play to flatter the people by a simulation of frankness while denying Americans their democratic rights and discussions by suave avoidance—these are not the traits of a democratic leader".[65]

Reaction against the bill also spawned the National Committee to Uphold Constitutional Government, which was launched in February 1937 by three leading opponents of the New Deal. Frank E. Gannett, a newspaper magnate, provided both money and publicity. Two other founders, Amos Pinchot, a prominent lawyer from New York, and Edward Rumely, a political activist, had both been Roosevelt supporters who had soured on the President's agenda. Rumely directed an effective and intensive mailing campaign to drum up public opposition to the measure. Among the original members of the committee were James Truslow Adams, Charles Coburn, John Haynes Holmes, Dorothy Thompson, Samuel S. McClure, Mary Dimmick Harrison, and Frank A. Vanderlip. The committee's membership reflected the bipartisan opposition to the bill, especially among better educated and wealthier constituencies.[66] As Gannett explained, "we were careful not to include anyone who had been prominent in party politics, particularly in the Republican camp. We preferred to have the Committee made up of liberals and Democrats, so that we would not be charged with having partisan motives."[67]

The committee made a determined stand against the Judiciary bill. It distributed more than 15 million letters condemning the plan. They targeted specific constituencies: farm organization, editors of agricultural publications, and individual farmers. They also distributed material to 161,000 lawyers, 121,000 doctors, 68,000 business leaders, and 137,000 clergymen. Pamphleteering, press releases and trenchantly worded radio editorials condemning the bill also formed part of the onslaught in the public arena.[68]

Traditionally, legislation proposed by the administration first goes before the House of Representatives.[69] However, Roosevelt failed to consult Congressional leaders before announcing the bill, which stopped cold any chance of passing the bill in the House.[69] House Judiciary Committee chairman Hatton W. Sumners believed the bill to be unconstitutional and refused to endorse it, actively chopping it up within his committee in order to block the legislation's chief effect of Supreme Court expansion.[69][14] Finding such stiff opposition within the House, the administration arranged for the bill to be taken up in the Senate.[69]

Congressional Republicans deftly decided to remain silent on the matter, denying congressional Democrats the opportunity to use them as a unifying force.[70] Republicans then watched from the sidelines as the Democratic party split itself in the ensuing Senate fight.

May 18, 1937 witnessed two setbacks for the administration. First, Associate Justice Willis Van Devanter—encouraged by the restoration of full-salary pensions under the March 1, 1937[80][81][82] Supreme Court Retirement Act[83] (Public Law 75–10; Chapter 21 of the general statutes enacted in the 1st Session of the 75th Congress)—announced his intent to retire on June 2, 1937, the end of the term.[84]

This undercut one of Roosevelt's chief complaints against the court—he had not been given an opportunity in the entirety of his first term to make a nomination to the high court.[84] It also presented Roosevelt with a personal dilemma: he had already long ago promised the first court vacancy to Senate Majority Leader Joseph T. Robinson.[84] As Roosevelt had based his attack of the court upon the ages of the justices, appointing the 65-year-old Robinson would belie Roosevelt's stated goal of infusing the court with younger blood.[85] Further, Roosevelt worried about whether Robinson could be trusted on the high bench; while Robinson was considered to be Roosevelt's New Deal "marshal" and was regarded as a progressive of the stripe of Woodrow Wilson,[86][87] he was a conservative on some issues.[85] However, Robinson's death six weeks later eradicated this problem. Finally, Van Devanter's retirement alleviated pressure to reconstitute a more politically friendly court.

The second setback occurred in the Senate Judiciary Committee action that day on Roosevelt's court reform bill.[88] First, an attempt at a compromise amendment which would have allowed the creation of only two additional seats was defeated 10–8.[88] Next, a motion to report the bill favorably to the floor of the Senate also failed 10–8.[88] Then, a motion to report the bill "without recommendation" failed by the same margin, 10–8.[88] Finally, a vote was taken to report the bill adversely, which passed 10–8.[88]

On June 14, the committee issued a scathing report that called FDR's plan "a needless, futile and utterly dangerous abandonment of constitutional principle ... without precedent or justification".[89][9]

Public support for the plan was never very strong and dissipated quickly in the aftermath of these developments.

Entrusted with ensuring the bill's passage, Robinson began his attempt to get the votes necessary to pass the bill.[90] In the meantime, he worked to finish another compromise which would abate Democratic opposition to the bill.[91] Ultimately devised was the Hatch-Logan amendment, which resembled Roosevelt's plan, but with changes in some details: the age limit for appointing a new coadjutor was increased to 75, and appointments of such a nature were limited to one per calendar year.[91]

The Senate opened debate on the substitute proposal on July 2.[92] Robinson led the charge, holding the floor for two days.[93] Procedural measures were used to limit debate and prevent any potential filibuster.[93] By July 12, Robinson had begun to show signs of strain, leaving the Senate chamber complaining of chest pains.[93]

On July 14, 1937, a housemaid found Joseph Robinson dead of a heart attack in his apartment, the Congressional Record at his side.[93] With Robinson gone so too were all hopes of the bill's passage.[94] Roosevelt further alienated his party's Senators when he decided not to attend Robinson's funeral in Little Rock, Arkansas.[95]

On returning to Washington, D.C., Vice President John Nance Garner informed Roosevelt, "You are beat. You haven't got the votes."[96] On July 22, the Senate voted 70–20 to send the judicial-reform measure back to committee, where the controversial language was stripped by explicit instruction from the Senate floor.[97]

By July 29, 1937, the Senate Judiciary Committee—at the behest of new Senate Majority Leader Alben Barkley—had produced a revised Judicial Procedures Reform Act.[98] This new legislation met with the previous bill's goal of revising the lower courts, but without providing for new federal judges or justices.

Congress passed the revised legislation, and Roosevelt signed it into law, on August 26.[99] This new law required that:

1. parties-at-suit provide early notice to the federal government of cases with constitutional implications;
2. federal courts grant government attorneys the right to appear in such cases;
3. appeals in such cases be expedited to the Supreme Court;
4. any constitutional injunction would no longer be enforced by one federal judge, but rather three; and
5. such injunctions would be limited to a sixty-day duration.[98]

• Baker, Leonard (1967). Back to Back: The Duel Between FDR and the Supreme Court. New York, NY: Macmillan.
• Caldeira, Gregory A. (December 1987). "Public Opinion and The U.S. Supreme Court: FDR's Court-Packing Plan". The American Political Science Review. 81 (4): 1139–1153. doi:10.2307/1962582. JSTOR 1962582. S2CID 144001434.
• Cushman, Barry (1998). Rethinking the New Deal Court: The Structure of a Constitutional Revolution. New York, NY: Oxford University Press. ISBN 978-0-19-511532-1.
• Epstein, Lee; Walker, Thomas G. (2007). Constitutional Law for a Changing America: Institutional Powers and Constraints (6th ed.). Washington, D.C.: CQ Press. ISBN 978-1-933116-81-5.
• Leuchtenburg, William E. (1995). The Supreme Court Reborn: The Constitutional Revolution in the Age of Roosevelt. New York, NY: Oxford University Press. ISBN 978-0-19-511131-6.
• McKenna, Marian C. (2002). Franklin Roosevelt and the Great Constitutional War: The Court-packing Crisis of 1937. New York, NY: Fordham University Press. ISBN 978-0-8232-2154-7.
• Minton, Sherman Reorganization of Federal Judiciary; speeches of Hon. Sherman Minton of Indiana in the Senate of the United States, July 8 and 9, 1937. Washington, D.C.: Government Printing Office, 1937.
• Schlesinger, Arthur M. (2003). The Politics of Upheaval: the Age of Roosevelt, 1935–1936. Vol. 3. Houghton Mifflin Harcourt. ISBN 978-0-618-34087-3.
• Shaw, Stephen K.; Pederson, William D.; Williams, Frank J., eds. (2004). Franklin D. Roosevelt and the Transformation of the Supreme Court. London: M.E. Sharpe. ISBN 0-7656-1032-9.
• Urofsky, Melvin I.; Finkelman, Paul (2002). A March of Liberty: A Constitutional History of the United States. Vol. 2 (2nd ed.). New York, NY: Oxford University Press. ISBN 978-0-19-512637-2.
• White, G. Edward (2000). The Constitution and the New Deal. Cambridge, MA: Harvard University Press. ISBN 978-0-674-00831-1.