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    had congress allowed six more justices onto the supreme court, how might have this changed the balance of powers?

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    FDR Tries to "Pack" the Supreme Court

    CONSTITUTIONAL RIGHTS FOUNDATION Bill of Rights in ActionFall 1994 (10:4)Updated July 2000The U.S. Supreme CourtBRIA 10:4 Home |  FDR Tries to "Pack" the Supreme Court  |  Should Nations Have the Rights to Kidnap Criminal Su, The series of anti-New Deal decisions by the Supreme Court angered President Roosevelt and prompted him to attempt to reform the federal court system itself. This included a so-called court-packing proposal that would have enabled FDR to appoint an additional six justices to the Supreme Court. Suddenly, the non-political branch of the federal government was caught up in an intense and bitter national political debate. The Supreme Court would never be the same again.

    BRIA 10 4 a FDR Tries to "Pack" the Supreme Court

    Between the creation of the Supreme Court in 1789 and the Civil War, the court found only two acts of Congress to be unconstitutional. During the next 50 years, the court challenged laws passed by Congress only a half-dozen times. But then, following the election of President Franklin D. Roosevelt in 1932, the Supreme Court seemed to take aim at his New Deal program, which had been designed to combat the effects of the Great Depression.

    In 1935, the "nine old men" (as the Supreme Court justices were then sometimes called) unanimously ruled three times against FDR and his New Deal. One of the decisions declared that the National Industrial Recovery Act, a major New Deal effort to lift the country out of the Depression, was unconstitutional. The following year, the court held that several more of FDR's economic recovery laws violated the Constitution. In addition, the court overturned some state reforms, like New York's minimum-wage law for women. Some of these Supreme Court rulings were decided by a 5–4 vote. In these cases, the opinion of only one justice sealed the fate of laws and programs affecting millions of Americans.

    The series of anti-New Deal decisions by the Supreme Court angered President Roosevelt and prompted him to attempt to reform the federal court system itself. This included a so-called "court-packing" proposal that would have enabled FDR to appoint an additional six justices to the Supreme Court. Suddenly, the non-political branch of the federal government was caught up in an intense and bitter national political debate. The Supreme Court would never be the same again.

    "Nine Old Men"

    When the three unanimous Supreme Court rulings against New Deal programs were announced on May 27, 1935, New Dealers called it "Black Monday." Speaking with reporters, Roosevelt lashed out against the court, complaining of its "horse-and-buggy" mentality. Clearly, he believed that the justices were locked into a view of the Constitution that did not take into account the economic crisis then facing the nation. In the months that followed, FDR's fears grew that the Supreme Court would totally gut the New Deal, including such landmark legislation as the Social Security Act and the National Labor Relations Act.

    At this time, the nine justices on the Supreme Court were actually divided into roughly three groups. Justices Van Devanter, McReynolds, Sutherland, and Butler made up the conservative wing. These men viewed the Constitution as the guardian of property and the capitalist system. Justice Sutherland once commented that, "the meaning of the Constitution does not change with the ebb and flow of economic events." On the other hand, the three liberals on the Court, Justices Brandeis, Cardozo, and Stone, saw the need to interpret the Constitution in the light of new realities and problems. In between these two groups were two moderates: Justice Owen Roberts and Chief Justice Charles Evans Hughes.

    Although appointed by a Republican (Hoover), Chief Justice Hughes tended to vote with the liberals in cases concerning New Deal legislation. This left a divided court with Justice Roberts providing the "swing vote." In 1935 and 1936, Roberts sided with the four conservatives to make up the five-vote majority that struck down a number of New Deal laws.

    President Roosevelt and his supporters were also critical of the advanced ages of many justices. Six of the "nine old men" were 70 or older. Justice Brandeis (who happened to be one of the liberals) turned 80 in 1936. Many New Dealers resented the ability of a small group of conservative-minded men, all born before 1880, to block the will of the Roosevelt administration, Congress and the majority of the U.S. electorate.

    The Court Reform Bill

    In fact, previous conservative Republican presidents had appointed a large majority of all federal court judges (who also served life terms). In 1936, only 28 percent of the 266 federal judges were Democrats. Moreover, during his four years in office, FDR had yet to name one Supreme Court justice.

    Shortly after "Black Monday," Roosevelt began talking privately with his advisers about how to curb the power of the Supreme Court. He asked his attorney general, Homer Cummings, to study the matter. Cummings and others first concentrated their efforts on a possible constitutional amendment.

    In November 1936, Roosevelt won re-election by carrying all but two states. Although FDR did not make the Supreme Court an issue in his campaign, he nevertheless considered his landslide election as a mandate for federal court reform. He knew he had to act quickly since many New Deal laws passed during his first term were headed for the Supreme Court.

    Working quietly, Attorney General Cummings drafted a bill that, on the surface, appeared to streamline the entire federal court system. But the real target was the Supreme Court. Cummings proposed that Congress pass a law granting the president the power to nominate an additional judge for every federal judge who, having served a minimum of 10 years, did not resign or retire within six months after reaching age 70. In effect, this would enable FDR to add up to six more justices to the Supreme Court as well as nearly 50 more lower-court federal judges. Of course, the Senate would still have to approve his nominations.

    FDR sent his court-reform bill to Congress on February 5, 1937. In his accompanying message, Roosevelt stated that the judiciary should be reorganized "in order that it also may function in accord with modern necessities." He pointed out that the number of justices on the Supreme Court had been changed by Congress six previous times. The president argued that the federal courts were crowded with pending cases causing costly delays. He also addressed the issue of "aged or infirm judges" and the need for "younger blood":

    Source : www.crf-usa.org

    How FDR lost his brief war on the Supreme Court

    On February 5, 1937, President Franklin D. Roosevelt shocked America by introducing a plan to expand the Supreme Court, to gain favorable votes. FDR’s war on the court was short-lived, and it was defeated by a crafty chief justice and Roosevelt’s own party members.

    National Constitution Center

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    How FDR lost his brief war on the Supreme Court

    February 5, 2022 by NCC Staff

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    On February 5, 1937, President Franklin D. Roosevelt shocked America by introducing a plan to expand the Supreme Court, to gain favorable votes. FDR’s war on the court was short-lived, and it was defeated by a crafty Chief Justice and Roosevelt’s party members.

    President Roosevelt had enacted wide-ranging legislation along with congressional Democrats as part of his New Deal program, starting in 1933.

    By 1937, Roosevelt had won a second term in office, but the makeup of a conservative-leaning Supreme Court hadn’t changed since he took office four years earlier. There were four Justices –nicknamed the “Four Horsemen”: ,” Justices George Sutherland, Pierce Butler, James McReynolds, and Willis Van Devanter—who were conservative enough that their votes against most New Deal plans were expected. A fifth justice with conservative leanings was the Chief Justice, Charles Evans Hughes, who also narrowly lost the 1916 presidential race to the Democratic incumbent, President Woodrow Wilson.

    However, Hughes also had roots in the progressive wing of the Republican party. Another justice, Owen Roberts, was a Hoover appointee who also voted with the conservatives on some decisions including the significant Schechter Poultry v. United States case, which struck down the National Industrial Recovery Act.

    Adding to the tension between the president and the Supreme Court were a series of decisions by the justices that halted key components of the New Deal. After his re-election, Roosevelt developed his plan to reform the court in secrecy, working with his attorney general, Homer Cummings, on a way to ensure the court would rule favorably about upcoming cases on Social Security and the National Labor Relations Act.

    The plan was to pass a law—the Judicial Procedures Reform Bill of 1937—that would allow the President to appoint an additional justice for every sitting justice who was over 70 years of age, Roosevelt could add six of his own justices to the court. With two liberals already on the bench, that would put the odds in FDR’s favor.

    While the idea may seem outlandish today, President Roosevelt must have felt the bill stood a good chance of success. The President used one of his famous “fireside chats” via radio on March 9, 1937 to make his case to the American people.

    “This plan of mine is not attacking of the court; it seeks to restore the court to its rightful and historic place in our system of constitutional government and to have it resume its high task of building anew on the Constitution ‘a system of living law.’ The court itself can best undo what the court has done,” Roosevelt said. He also claimed more justices were needed to handle the Court’s caseload.

    However, many Americans believed the high court was sacrosanct, and opposition to the plan steadily built inside Washington. It wasn’t assured that the proposed law would even make it out of committee for a vote on the Senate floor.

    On March 10, Cummings testified before the Senate Judiciary Committee. “We want an independent judiciary, but we want a judiciary that will permit the country to move,” Cummings said. A week later, more testimony offered before the committee stuck a fork in the bill.

    Senator Burton Wheeler read a letter from Chief Justice Hughes to the committee, which explained the need for an independent Supreme Court and debunked much of the logic behind the bill and Cummings’s testimony. An additional signer on the Hughes letter was the liberal justice, Louis Brandeis.

    In the diaries of Harold Ickes, a key FDR adviser, the letter’s effect was duly noted. “This letter, without expressing itself as to the policy of the president’s plan, sought to prove in great detail that the court did not need any extra help to handle its work since it kept right up with its docket. It then went on to Congress the opinion that more judges would make for inefficiency and delay. It was good tactics,” Ickes said.

    Within five weeks of the President’s announcement, the “court-packing plan,” as it came to be known, was heading toward a dead-end in the Senate. By June 1937, the Judiciary Committee had sent a report with a negative recommendation to the full Senate. “The bill is an invasion of judicial power such as has never before been attempted in this country. . . .  It is essential to the continuance of our constitutional democracy that the judiciary be completely independent of both the executive and legislative branches of the government,” the report read.

    Its conclusion was even more direct: “It is a measure which should be so emphatically rejected that its parallel will never again be presented to the free representatives of the free people of America.”

    In the meantime, changes were afoot that made sure the whole idea of a court-packing plan wasn’t coming back in the Roosevelt administration. The Roosevelt administration was on the winning side of three court decisions involving the minimum wage, Social Security, and the National Labor Relations Act. Some have argued this started when Justice Owen Roberts began voting with the more liberal justices to save the legislation, also known as “switch in time that saved nine. Other historians believe that Roberts had other legal reasonings for his decisions after his vote in the West Coast Hotel Co. v. Parrish case in 1937, or political motivations behind his later votes.

    Source : constitutioncenter.org

    When Franklin Roosevelt Clashed With the Supreme Court—and Lost

    Buoyed by his reelection but dismayed by rulings of the justices who stopped his New Deal programs, a president overreaches

    HISTORY

    History of Now

    When Franklin Roosevelt Clashed With the Supreme Court—and Lost

    Buoyed by his reelection but dismayed by rulings of the justices who stopped his New Deal programs, a president overreaches

    William E. Leuchtenburg

    May 2005

    The members of the Supreme Court including Chief Justice Charles Evans Hughes (center, front row) ruled against President Franklin Delano Roosevelt's New Deal programs. MPI / Getty Images

    As the first election returns reached his family estate in Hyde Park, New York, on a November night in 1936, Franklin Delano Roosevelt leaned back in his wheelchair, his signature cigarette holder at a cocky angle, blew a smoke ring and cried “Wow!” His huge margin in New Haven signaled that he was being swept into a second term in the White House with the largest popular vote in history at the time and the best showing in the electoral college since James Monroe ran unopposed in 1820.

    The outpouring of millions of ballots for the Democratic ticket reflected the enormous admiration for what FDR had achieved in less than four years. He had been inaugurated in March 1933 during perilous times—one-third of the workforce jobless, industry all but paralyzed, farmers desperate, most of the banks shut down—and in his first 100 days he had put through a series of measures that lifted the nation’s spirits. In 1933 workers and businessmen marched in spectacular parades to demonstrate their support for the National Recovery Administration (NRA), Roosevelt’s agency for industrial mobilization, symbolized by its emblem, the blue eagle. Farmers were grateful for government subsidies dispensed by the newly created Agricultural Adjustment Administration (AAA).

    Over the ensuing three years, the cavalcade of alphabet agencies had continued: SEC (the Securities and Exchange Commission); REA (the Rural Electrification Administration) and a good many more. The NYA (National Youth Administration) had permitted college students, such as the future playwright Arthur Miller, to work their way through college. The WPA(Works Progress Administration) had sustained millions of Americans, including artists such as Jackson Pollock and writers such as John Cheever. In a second burst of legislation in 1935, Roosevelt had introduced the welfare state to the nation with the Social Security Act, legislating old-age pensions and unemployment insurance. During the 1936 campaign, the president’s motorcade, mobbed by well-wishers wherever he traveled, had to inch along the streets in towns and cities across the nation. His landslide victory that year signified the people’s verdict on the New Deal. Franklin D. Roosevelt, wrote Arthur Krock, the chief Washington correspondent for the New York Times, had gotten “the most overwhelming testimonial of approval ever received by a national candidate in the history of the nation.”

    The election-night jubilation was tempered, however, by an inescapable fear—that the U.S. Supreme Court might undo Roosevelt’s accomplishments. From the outset of his presidency, FDR had known that four of the justices—Pierce Butler, James McReynolds, George Sutherland and Willis Van Devanter—would vote to invalidate almost all of the New Deal. They were referred to in the press as “the Four Horsemen,” after the allegorical figures of the Apocalypse associated with death and destruction. In the spring of 1935, a fifth justice, Hoover-appointee Owen Roberts—at 60 the youngest man on the Supreme Court—began casting his swing vote with them to create a conservative majority.

    During the next year, these five judges, occasionally in concert with others, especially Chief Justice Charles Evans Hughes, struck down more significant acts of Congress—including the two foundation stones, the NRA and the AAA, of Roosevelt’s program—than at any other time in the nation’s history, before or since. In May 1935, the court destroyed FDR’s plan for industrial recovery when, in a unanimous decision involving a kosher poultry business in Brooklyn, it shot down the blue eagle. Little more than seven months later, in a 6 to 3 ruling, it annihilated his farm program by determining that the Agricultural Adjustment Act was unconstitutional. Most of the federal government’s authority over the economy derived from a clause in the Constitution empowering Congress to regulate interstate commerce, but the court construed the clause so narrowly that in another case that next spring, it ruled that not even so vast an industry as coal mining fell within the commerce power.

    These decisions drew biting criticism, from inside and outside the court. Justice Harlan Fiske Stone, a Republican who had been Calvin Coolidge’s attorney general, denounced Roberts’ opinion striking down the farm law as a “tortured construction of the Constitution.” Many farmers were incensed. On the night following Roberts’ opinion, a passerby in Ames, Iowa, discovered life-size effigies of the six majority opinion justices hanged by the side of a road.

    Fury at the court intensified when, in its final action of the term, it handed down a decision in the Tipaldo case. Until that point, defenders of the court had contended that the justices were not opposed to social legislation; the jurists merely wanted such laws to be enacted by the states, not the federal government. But early in June 1936, the court, by 5 to 4, struck down a New York state law providing a minimum wage for women and child workers. Laundry owner Joe Tipaldo, said the court, could continue to exploit female workers in his Brooklyn sweatshop; the state was powerless to stop him. “If this decision does not outrage the moral sense of the country,” said Secretary of the Interior Harold Ickes, “then nothing will.” And, indeed, people of all political persuasions were incensed. On its editorial page, the Knickerbocker Press, an upstate New York Republican newspaper, asserted, “The law that would jail any laundryman for having an underfed horse should jail him for having an underfed girl employee.”

    Source : www.smithsonianmag.com

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