FDR’s plan to expand the Supreme Court collapsed after one justice unexpectedly changed his vote, preserving the Court’s size and its independence.
The Judiciary Act of 1789 established a Supreme Court comprised of a Chief Justice and five associate justices. The total number of justices changed legislatively six times until established at nine in 1869, only four years after the conclusion of the Civil War. Since the presidency of Ulysses S. Grant, the number of members on our country’s supreme court has remained at nine, including the Chief Justice. While the history of the United States continued through the Gilded Age, the Panic of 1893, the Spanish-American War, World War I, and the remarkable industrial growth of the Roaring Twenties, the number of those on this nation’s highest court remained the same.
In 1929, Herbert Hoover became our 31st president. Six months later the stock market crashed on “Black Thursday,” a date considered to be the beginning of what became known as the Great Depression. Hoover’s four-year term of office was marked by high rates of unemployment, extreme poverty, huge reductions in trade, and a decline in industry. One-third of the country’s farmers lost their land and half of some 25,000 banks failed. With a president hesitant to intervene on the dreadful state of the economy, people who had lost their homes resorted to hundreds of makeshift shelters throughout the country, many of which were tagged with the name “Hooverville.”
Promising a New Deal for America, Democrat Franklin Delano Roosevelt campaigned in 1932 on the economic failures during the Hoover administration and won in a landslide. While receiving 58 percent of the popular vote four years earlier, Hoover garnered only 39 percent in his effort to serve a second term. With his party having majorities in both the House and the Senate, FDR proposed a multitude of programs designed to spur employment, stimulate the economy, and provide relief for farmers. Several pieces of his legislative initiatives were — by 5-4 votes — struck down as unconstitutional by what many believed to be an overly conservative Supreme Court. Justices Pierce Butler, George Sutherland, James Clark McReynolds, and Willis Van Devanter, known as the “Four Horseman,” made up the conservative bloc of the Court, and had been typically joined by the vote of Justice Owen Roberts, a Hoover appointment. The four justices who would have approved the progressive measures submitted by FDR included Chief Justice Charles Evans Hughes, considered a swing vote on the Court, and the more liberal Justices at that time: Louis Brandeis, Benjamin Cardozo, and Harlan Stone.
Frustrated by these decisions by the high court and his inability to change its makeup — all justices had lifetime appointments under the terms of our constitution, FDR offered a court reform bill in February of 1937 asking the Congress to increase the number of the justices and allowing him as president to appoint new members more philosophically in line with his initiatives. FDR’s plan was to add one new justice for every individual over 70 up to as many as 15 in total. Even Democrats in the House and Senate expressed concerns about the president’s proposal. Such an intrusion upon the traditional role of the Judicial Branch of our government, FDR’s opponents contended, could upset the balance of powers envisioned by the founding fathers.
Just over one month later, before Congress had considered what many called a “court packing plan,” the Supreme Court announced its opinion in West Coast Hotel Company v. Parrish, a case testing the constitutionality of a law establishing a minimum wage for workers. This time, the “Four Horseman” did not prevail. Justice Roberts unexpectedly joined Chief Justice Hughes and the more liberal justices in upholding the legislation. Many historical accounts suggest that Roberts’ change in position qualified as a strategic political move to protect the Court’s independence, thereby preserving the “balance” among the three branches of our government.
Although there is some debate on the issue, actor and humorist Cal Tinney is often credited with having turned the commonly known phrase, “a stitch in time saves nine,” to one believed to apply to the role reversal by Justice Roberts: “A switch in time saves nine.” This “switch,” coupled with the retirement of Justice Devanter at the end of the year, did indeed serve to derail any momentum for the passage of the “court packing” bill. Congress, even though Democrats had clear majorities in the House and Senate, declined to act. Thus, there were to be no new appointees who might be beholden to the wishes of the president. At least one Roosevelt biographer described this heavy-handed effort to alter the makeup of the supreme court as the low point of his political career.
At the time Justice Roberts’ retirement on July 31, 1945, only four months after the death of FDR, Justice Roberts burned his legal and judicial papers. Later, however, he addressed an explanation of his position in West Coast Hotel Company v. Parrish to Justice Felix Frankfurter, who was appointed two years after the decision. In his written memorandum Roberts denied any causal connection between his vote in the case and Roosevelt’s “court packing” proposal then before the Congress.
After serving for three years as 11th Dean of the University of Pennsylvania Law School, his alma mater, Justice Roberts died in 1955 at the age of 90.
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