Supreme Power

Over breakfast this morning, Alliance for Justice hosted a discussion between author Jeff Shesol and retired U.S. Court of Appeals Judge Patricia Wald about the relationship between the President of the United States and the Supreme Court.

Many of us have heard the phrase “the switch in time that saved nine,” but know little about the true story behind President Franklin D. Roosevelt’s court packing plan. In his new book, Supreme Power: Franklin Roosevelt vs. the Supreme Court, Shesol chronicles the power struggle between President Roosevelt and the Supreme Court following the passage of the New Deal — and the Court declaring parts of it unconstitutional.

After watching many of his reforms encounter stiff opposition from the “Four Horsemen” who made up the politically-savvy and conservative wing of the Supreme Court, Roosevelt decided to take action. Since the justices had lifetime appointments and could not be easily removed, Roosevelt decided that the answer was the Judiciary Reorganization Bill of 1937. The Constitution does not specify how many justices sit on the Supreme Court, so the bill sought to add an additional justice to the Supreme Court for every sitting justice over the age of 70. This would have resulted in Roosevelt adding six new judges to the Court -- raising the number of members of the Court from 9 to 15 -- and ensuring sufficient support for Roosevelt’s massive social reform legislation.

When the plan was conceived in 1937, Roosevelt had recently won reelection by a landslide and the Court was deeply unpopular. Roosevelt publicly justified the addition of six justices by explaining that elderly judges throughout the country were unable to keep up with the workload, and court dockets were suffering as a result.

Unfortunately for Roosevelt, the facts did not support his unsubstantiated claim of judicial overload. Mainstream newspapers were almost unanimous in their condemnation of the idea and the plan was hailed as a great idea by the Nazi press in Germany. The American public sent thousands of displeased telegrams to Congress. Ultimately, support for Roosevelt’ position eroded. While many shared Roosevelt’s displeasure with the Court’s conservatism, tampering with the institution seemed even to many liberals to represent excessive presidential power and a threat to the Constitution.

Roosevelt’s refusal to compromise his plan of adding six justices (Shesol notes that he may have been able to successfully add two, or even four seats to the Court), was a severe political miscalculation for the president. Luckily for Roosevelt, beginning in mid-1937, a number of conservative justices retired, providing the president with the opportunity to appoint several new justices who transformed the ideological balance of the Court.

Our thanks to Jeff Shesol and Judge Wald for a fascinating morning. Photos of the event can be found by clicking here. To learn more about the true story behind the court packing plan, you can watch Shesol speak about his book with Jeffrey Toobin on c-span.