# FDR Court-Packing Crisis (1937) Franklin D. Roosevelt's attempt to expand the [[Supreme Court of the United States]] from nine to fifteen justices — the most direct presidential assault on [[Judicial Independence]] in American history and the original template for every modern court-reform debate. Roosevelt proposed the Judicial Procedures Reform Bill on February 5, 1937, after the Court struck down pillar after pillar of his [[New Deal]]. He lost the legislative fight but won the constitutional war: the Court reversed course, the [[Administrative State]] survived, and Roosevelt eventually appointed eight of nine justices. The episode cemented a political norm against court-packing that held for nearly a century — and that the contemporary right and left are now revisiting from opposite directions. ## Background: The Court vs. the New Deal The [[Great Depression]] had shattered the old economic order, and Roosevelt's [[New Deal]] represented the most ambitious expansion of federal power since Reconstruction. But the [[Supreme Court of the United States]], still operating under the [[Laissez-Faire]] constitutional framework of the Lochner era (named for [[Lochner v. New York]]), systematically dismantled Roosevelt's program: - **Schechter Poultry Corp. v. United States (1935)** — struck down the [[National Industrial Recovery Act]], ruling that Congress had unconstitutionally delegated legislative power and exceeded the [[Commerce Clause]] - **United States v. Butler (1936)** — invalidated the Agricultural Adjustment Act's processing tax, constraining federal spending power - **Morehead v. New York ex rel. Tipaldo (1936)** — struck down state minimum wage laws for women, leaving workers with no floor under wages at either the federal or state level The conservative bloc — the so-called "Four Horsemen" (Justices James McReynolds, Pierce Butler, George Sutherland, and Willis Van Devanter) — voted as a unit against [[New Deal]] legislation. They needed only one swing vote from the center to form a majority, and they got it often enough to gut Roosevelt's recovery agenda. Roosevelt responded at the ballot box. The [[1936 Presidential Election]] produced a landslide of historic proportions: 523 electoral votes to Alf Landon's 8, carrying 46 of 48 states. Roosevelt read the mandate as total — the people had endorsed the [[New Deal]], and only an unelected Court stood in the way. ## The Plan On February 5, 1937, Roosevelt sent Congress the Judicial Procedures Reform Bill. The mechanism: for every sitting federal judge over the age of 70 years and 6 months who did not retire, the President could appoint an additional judge. Applied to the [[Supreme Court of the United States]], this would have allowed up to six new justices, expanding the bench from nine to fifteen. Roosevelt sold it as an efficiency measure — elderly judges were slowing down the federal courts and needed "younger blood" to keep up with the workload. The pretext convinced no one. Chief Justice Charles Evans Hughes demolished it with a letter to the Senate demonstrating the Court was fully current on its docket. Everyone understood the real purpose: stack the [[Supreme Court of the United States]] with justices who would uphold [[New Deal]] legislation. ## The Backlash The court-packing plan triggered one of the sharpest intra-party revolts in American political history. Roosevelt had overread his mandate and underestimated institutional loyalty to [[Judicial Independence]] and [[Checks and Balances]]: - The Senate Judiciary Committee voted 10–8 against the bill, issuing a scathing report calling it "a needless, futile, and utterly dangerous abandonment of constitutional principle" - Vice President John Nance Garner openly opposed the President, holding his nose on the Senate floor in a theatrical gesture of disgust - Conservative [[Democratic Party]] members — particularly Southern Democrats who feared federal power could one day be turned toward civil rights — broke with Roosevelt - The [[Republican Party]] largely stayed quiet, content to let Democrats destroy themselves - The press, the legal establishment, and the public turned against the plan — polls showed majority opposition even among Roosevelt supporters The fight consumed Roosevelt's political capital for the better part of 1937 and fractured the [[New Deal]] coalition. A bipartisan "Conservative Coalition" of Southern Democrats and Republicans formed in Congress, blocking further [[New Deal]] legislation for years. The court-packing defeat is widely considered the beginning of the end of the New Deal's legislative momentum. ## "The Switch in Time That Saved Nine" While the political battle raged, the constitutional ground shifted beneath it. Justice Owen Roberts, who had previously voted with the Four Horsemen to strike down minimum wage laws in *Morehead*, switched sides: - **[[West Coast Hotel v. Parrish]] (March 29, 1937)** — Roberts joined the liberal bloc to uphold Washington State's minimum wage law, overruling the Lochner-era precedent. This decision effectively ended the Court's decades-long hostility to economic regulation. - **NLRB v. Jones & Laughlin Steel Corp. (April 12, 1937)** — the Court upheld the [[National Labor Relations Act]] (also known as the [[National Labor Relations Act]]), embracing an expansive reading of the [[Commerce Clause]] that gave Congress broad power to regulate labor relations and economic activity. The phrase "the switch in time that saved nine" — a play on "a stitch in time saves nine" — captured the popular narrative that Roberts changed his vote to defuse the court-packing threat. The historical reality is murkier: Roberts may have cast his vote in *West Coast Hotel* before Roosevelt even announced the plan, and his jurisprudential shift may have had doctrinal rather than political motivations. But the timing was unmistakable, and the effect was decisive. Justice Van Devanter retired in June 1937, giving Roosevelt his first vacancy. The court-packing bill died in the Senate that July. Roosevelt had lost the battle but won the war. By 1941, he had appointed seven of nine justices. By the time he died in 1945, eight of nine were his appointees. The [[Supreme Court of the United States]] never again struck down a [[New Deal]] program. ## The Constitutional Revolution of 1937 The consequences extended far beyond Roosevelt's presidency. The Court's retreat in 1937 produced a fundamental realignment in constitutional law: - The [[Commerce Clause]] was read expansively, granting Congress broad authority to regulate the national economy — the doctrinal foundation of the modern [[Administrative State]] - The Court largely abandoned judicial review of economic legislation, adopting a "rational basis" standard that deferred to legislative judgments on economic policy - The [[Fourteenth Amendment]]'s Due Process Clause was no longer used to strike down economic regulation (ending the "substantive due process" doctrine for economic rights, though it would later be revived for personal liberties) - The [[Social Security Act]] and [[National Labor Relations Act]] were upheld, establishing the constitutional legitimacy of the welfare state and federal labor regulation This "Constitutional Revolution of 1937" created the legal framework that governed American economic regulation for the rest of the 20th century — and that the conservative legal movement, organized through the [[Federalist Society]] and committed to [[Originalism]], has spent decades trying to roll back. ## RWKB Significance The court-packing crisis sits at the pivot point of the [[Conservative Court Capture Timeline]]. The entire arc of the modern conservative legal project — from the founding of the [[Federalist Society]] in 1982 through the [[Heritage Foundation]]'s judicial shortlists to the current [[Supreme Court of the United States]] supermajority — is an attempt to reverse the Constitutional Revolution of 1937 and restore pre-[[New Deal]] limits on federal power. The episode illuminates several dynamics that recur in the vault's core themes: **Institutional norms vs. democratic mandates.** Roosevelt had an overwhelming popular mandate but was checked by an institutional norm — the nine-justice Court — that had no constitutional basis. (The Constitution does not specify the number of justices; Congress has changed it seven times.) The norm held because defenders of [[Judicial Independence]] persuaded even Roosevelt's allies that breaking it would damage the republic. Contemporary parallels to norm erosion under [[Authoritarianism]] are direct. **The credible threat doctrine.** Even though the plan failed legislatively, the *threat* may have changed the Court's behavior. This is the central argument of modern court-expansion advocates: you don't necessarily have to pack the Court; you just have to make the justices believe you will. The [[Checks and Balances]] framework depends on each branch believing the others might actually use their constitutional powers. **The conservative long game.** The [[Laissez-Faire]] constitutionalism that the Court abandoned in 1937 — strict limits on the [[Commerce Clause]], hostility to the [[Administrative State]], [[States' Rights]] as a check on federal regulation — is precisely the agenda that [[Originalism]] and the [[Federalist Society]] have rehabilitated. The court-packing crisis didn't end the debate; it just determined which side spent the next fifty years in the wilderness. **Precedent for contemporary court reform.** Every modern proposal — term limits for justices, expanding the Court, jurisdiction stripping — invokes 1937 as either a cautionary tale or a proof of concept. Roosevelt's failure established the political norm against structural court reform. Whether that norm survives the current era of democratic stress-testing remains an open question.