CONSTITUTIONAL CONVERSATIONS . . .
The New Court-Packing Plan
by
M.E. Boyd, Esq. – Miss Constitution . . .Simply Civics
We are treated in the news of late to a plan to “reform” the Supreme Court of the United States. This is not a new idea; it is gotten out of the attic every so often but it is unusual for a political party that has lost the Presidency to try it. The last President to try it was Franklin Delano Roosevelt in his effort to thwart what he considered ill-advised opinions by the Justices regarding his legislative agenda. The public, wildly favorable to FDR, was nevertheless not fooled by his attempt to manipulate a co-equal branch of the federal government.
It is an interesting story; here was the plan.
In 1937, right after his overwhelming re-election, a bill was introduced with FDR’s blessing called the Judicial Procedures Reform Bill. Its provisions included: 1) when any United States judge, who has a lifetime appointment during “good behavior” and has served ten years on the bench, reaches the age of 70 and does not resign or retire the President shall appoint one additional judge to that Court with Senate approval; 2) a United States judge has six months from reaching the age of 70 to resign or retire; 3) the process could not result in more than 15 judges on the Supreme Court of the United States. The current proposal in the news is to expand the Supreme Court to 15 judges. Perhaps they read the bill introduced in 1937.
In a message to Congress Roosevelt claimed that the Court simply couldn’t handle its burden or, as he put it, there is “the necessity of relieving present congestion.” But his real thrust was aged or infirm judges. “In exceptional cases, judges, like other men retain to an advanced age full mental and physical vigor. Those not so fortunate are often unable to perceive their own infirmities. A lowered mental or physical vigor leads men to avoid an examination of complicated and changed conditions. Little by little facts become blurred through old glasses . .”
So, FDR wanted to add “helpers” of his choosing and political persuasion to the ranks of these infirm Justices who had refused to retire or resign at age 70.
Roosevelt also went directly to the American people with his plan so that they could persuade Congress to pass his “reform” bill. These were known as fireside chats and whole families gathered to hear the President on the radio. He had a wonderful and comforting aristocratic voice and it felt to all as though he was talking to them, personally.
“Tonight, sitting at my desk in the White House, I make my first radio report to the people in my second term of office. . . We have reached the point as a nation where we must take action to save the Constitution from the Court and the Court from itself. . . We want a Supreme Court which will do justice under the Constitution – not over it. . . By bringing into the judicial system a steady and continuing stream of new and younger blood, I hope, first, to make the administration of all Federal justice speedier and, therefore, less costly; secondly, to bring to the decision of social and economic problems younger men who have had personal experience with modern facts and circumstances. . . I regret the necessity of this controversy . . . this plan is no attack on the Court; it seeks to have the Court resume its high task of building anew on the Constitution “a system of living law.”
Of course this was a huge controversy at the time and the public was not moved by the President’s otherwise very influential little chats. The public knew a political move when they heard one. The Chief Justice, Charles Evans Hughes, weighed in very politely in a letter to a Senator stating, among other things, that “The Supreme Court is fully abreast of its work. . . The present number of justices is thought to be large enough so far as the prompt, adequate, and efficient conduct of the work of the court is concerned.”
Roosevelt lost the battle over this bill but won the war, so to speak, as he stayed in office two terms longer than the example George Washington set and was able to get eight Supreme Court selections that changed the nation forever. His decision to stay in office past two terms forced an Amendment to the Constitution (the 22nd) limiting a President to two terms in office. It is not thought wise to have one President’s influence control decades of future decisions.
The Supreme Court of the United States, named specifically in Article III of the United States Constitution, and activated under the Judiciary Act of 1789, originally had six members. This was changed in 1869 to nine members and has remained at that number ever since. Why that number? There is much intimacy on the Court as Justices confer and defer and have to decide as a collegial body whether or not to hear a particular case through Petitions for Certiorari. In conference, if four out of nine Justices want to hear a case it is heard. Justice Hughes thought additional opinions and discussions to convince, by more people, would bring deadlock not efficiency to the Court. Convincing four is much easier than convincing seven.
Our Supreme Court, or any court, once the robes are donned, are transformed by an important mysterious process into neutral, thoughtful, dutiful, keepers of the flame in our system. They sit outside the blood sport that is politics and are mandated to put aside the politics of the President that appointed them and the Senate that confirmed them. That is why they have their positions for life or for however long they themselves feel they want to serve the nation as Supreme Court Justices. This mystery, or spiritual transformation of the Justices, is a very important component to our belief in and obedience to the Rule of Law.
Franklin Roosevelt never quite recovered his standing after proposing his Court-packing plan and those proposing something similar will most likely experience the same fate.
© M.E. Boyd, Esq. “Miss Constitution” 2019
All Right Reserved
