July 22, 1937 Stacking the Deck

To Roosevelt, President Wilson’s age-70 provision was the answer to his problems, and the end to Supreme Court opposition to his policies.

United States ConstitutionArticle III, Section 1 of the United States Constitution creates the highest court in the land.  The relevant clause states that “The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish“.  Nowhere does the document specify the number of justices.

The United States was in the midst of the “Great Depression” in 1932, when President Franklin Delano Roosevelt came to office. Roosevelt had promised a “New Deal” for America, and immediately began a series of sweeping legislative reforms designed to counter the devastating effects of the Depression. Roosevelt’s initiatives faced many challenges in the courts, with the Supreme Court striking down several New Deal provisions as unconstitutional in his first term.

The Supreme Court was divided along ideological lines in 1937, as it is today. “Judicial Realist” or “Liberal” legal scholars and judges argued that the constitution was a “living document”, allowing for judicial flexibility and legislative experimentation. Justice Oliver Wendell Holmes, Jr. first referred to a “living constitution” in 1920 in speaking of  Missouri v. Holland, a case which overrode state concerns about abrogation of states’ rights arising under the Tenth Amendment.  The “case before us” Holmes wrote, “must be considered in the light of our whole experience and not merely in that of what was said a hundred years ago”.


“Judicial Formalists”, today we call them “Conservatives” or “Originalists”, seek to discover the original meaning or intent of the framers, of the Constitution. Formalist legal scholars and judges argue that the judiciary is not supposed to create, amend or repeal law; that is for the legislative branch. The role of the court is to interpret and uphold any given law, or strike it down in light of the original intent of the framers and the ratifiers.

In 1937, SCOTUS was divided along ideological lines, with three Liberals, four Conservatives, and two swing votes.

Woodrow Wilson’s Attorney General, James Clark McReynolds, made a proposal in 1914 that: “(When) any judge of a federal court below the Supreme Court fails to avail himself of the privilege of retiring now granted by law (at age 70), that the President be required, with the advice and consent of the Senate, to appoint another judge, who would preside over the affairs of the court and have precedence over the older one. This will insure at all times the presence of a judge sufficiently active to discharge promptly and adequately the duties of the court”.

To the President, this was the answer. The age 70 provision allowed Roosevelt to nominate 6 more handpicked justices, effectively ending Supreme Court opposition to his policies.


Roosevelt’s “Judiciary Reorganization Bill of 1937” immediately came under sharp criticism from legislators, bar associations, and the public. Senate Judiciary Committee began hearings on the bill on March 10, 1937, reporting it “adversely” by a committee vote of 10 to 8. The full senate took up the matter on July 2, 1937, with the Roosevelt administration suffering a disastrous setback when Senate Majority Leader Joseph T. Robinson, a powerful supporter of the legislation, died of a heart attack.

1-new-deal-supreme-court-grangerThe full Senate voted on July 22, 1937, to send the bill back to the Senate Judiciary Committee, where provisions for additional justices were stripped from the bill. A modified version passed in August, but Roosevelt’s “Court Packing” scheme was dead.

In the end, the President would have the last word. Over the course of an unprecedented four terms, Roosevelt would eventually appoint eight out of the nine justices, serving on the Court.

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