In 1936, Franklin Roosevelt won a second of four elections as President by 10 million votes, and while he certainly enjoyed what today we would call a mandate, he had problems with the justices of the Supreme Court, most of whom had been appointed by Republican Presidents. The Court’s opposition to some of his proposed New Deal legislation upset Roosevelt, who resented the fact that they could veto legislation that clearly had the support of the vast majority of the public.
Roosevelt suggested that their age was a major problem, as six of the judges were over 70. He announced that he was going to ask Congress to pass a bill enabling the president to expand the Supreme Court by adding one new judge, up to a maximum off six, for every current judge over the age of 70. Washington called it “packing the court.” Talk about second term hubris!
In a radio speech on March 9, 1937, Roosevelt said:
“If by that phrase “packing the Court” it is charged that I wish to place on the bench spineless puppets who would disregard the law and would decide specific cases as I wished them to be decided, I make this answer: that no president fit for his office would appoint, and no Senate of honorable men fit for their office would confirm, that kind of appointees to the Supreme Court.
But if by that phrase the charge is made that I would appoint and the Senate would confirm justices worthy to sit beside present members of the Court, who understand modern conditions, that I will appoint justices who will not undertake to override the judgment of the Congress on legislative policy, that I will appoint justices who will act as justices and not as legislators – if the appointment of such justices can be called “packing the Courts,” then I say that I and with me the vast majority of the American people favor doing just that thing – now.”
Notice that Roosevelt’s strategy is to imply that the justices on this conservative court are legislating, not interpreting the Constitution. That sounds familiar.
While the legislation didn’t make it through Congress, Roosevelt got what he wanted. One justice announced that he had changed his mind about voting against minimum wage legislation. Chief Justice CharlesHughes also reversed his opinion on the Social Security Act and the National Labor Relations Act and by a 5-4 vote they were now declared to be constitutional. Then Willis Van Devanter, probably the most conservative of the justices, announced his intention to resign. He was replaced by Hugo Black, a Democrat and a strong supporter of the New Deal.
The Court caved. Roosevelt had the satisfaction of knowing he had a Supreme Court that was now less likely to block his legislation.
Check out a line from Roosevelt’s 1937 speech:
“I hope that you have re-read the Constitution of the United States in these past few weeks. Like the Bible, it ought to be read again and again.”
The Bible! Today, the ACLU would be up in arms.