F.D.R. Vs. The Supreme Court


It was Cummings who finally came up with the idea of naming new judges to replace the aged men on the bench. The fact that Justice McReynolds, when he had been attorney general in 1913, had advanced such a plan for driving overage judges of the lower courts into retirement made this approach irresistible. To the President’s delight, Cummings shrewdly camouflaged the scheme in the trimmings of judicial reform. With the aid of a few trusted lieutenants, he drafted and redrafted a bill and a presidential message to Congress.

There was no discussion of the bill with the Cabinet, congressional leaders, or members of the court. F. D. R. gave his annual dinner for the judiciary on the evening of February 3, 1937, without breathing a word of his secret to the judges. On the morning of February 5 he disclosed the contents of his message to an incredulous group of Cabinet and congressional leaders a few minutes before he jubilantly explained it to the press. Both his aloofness in working out the plan and his manner of presenting it suggested that he regarded it as almost a fait accompli .


The President represented his bill as a reform aimed at correcting injustice and relieving the court of congestion. His inference was that aged justices on the Supreme Court bench were keeping their calendar clear by rejecting an excessive number of petitions for review—a charge that almost every lawyer knew to be false. Though he called for a “persistent infusion of new blood” into the judiciary, there was only a vague hint of the bill’s real purpose in his suggestion that it would obviate the need for more fundamental changes in the powers of the courts or in the Constitution.

The heart of the bill was the provision giving the President authority to name an additional federal judge for every incumbent who had been on the bench ten years and had not resigned within six months after reaching the age of seventy. As six members of the Supreme Court had passed that age limit, F. D. R. could immediately have appointed six new justices. If Chief Justice Hughes and his five aged associates had chosen to remain, the membership of the court would have been enlarged from nine to fifteen.

Legislators gasped over the boldness of the plan, yet many of them gave it immediate support. Others who dared to speak out against it assumed their opposition would be futile; Senator Carter Glass summed up his despair by exclaiming: ”Why, if the President asked Congress to commit suicide tomorrow, they’d do it.”

The impact on the justices varied. Roberts, the youngest among them and therefore not a direct target of the President’s campaign, decided to resign if the measure were passed. Hughes, then 74, told his intimates, “If they want me to preside over a convention, I can do it.” Brandeis, the eldest of the so-called Nine Old Men and one of the greatest liberals who ever sat on the Supreme Court bench, was cut to the quick by the President’s indiscriminate assault upon age. Without exception, the justices were hostile to the scheme and resented the President’s false inference that they were not able to keep up with their work.

The first jolt that the bill sustained was a wave of public reaction against the deceptive trappings of reform in which F. D. R. and Cummings had tried to camouflage their assault upon the court. Many, even among those who thought the conduct of the court had forced the President’s hand, were critical of this indirection. It placed the Administration forces on the defensive from the very beginning.

A second severe jolt came when Senator Burton K. Wheeler read a letter from Chief Justice Hughes to the Senate Judiciary Committee, which was conducting hearings on the bill. Leaders of the fight in the Senate had asked the Chief Justice to appear in person, and he had agreed to do so if Justice Brandeis would accompany him. When he found that Brandeis believed strongly that no justice should testify in person, he contented himself with sending a letter setting forth the facts about the work of the court.

With cool logic, Hughes showed that the Supreme Court was fully abreast of its work, that it was very liberal in granting petitions for review, and that an increase in the size of the court would impair rather than enhance its efficiency. “There would be more judges to hear,” he wrote, “more judges to confer, more judges to discuss, more judges to be convinced and to decide.” Without touching on the major question of policy, Hughes left the President’s arguments a shambles.

The Senate hearings produced a chorus of opposition to the bill from distinguished leaders in many walks of life. Such an outpouring of public opinion stiffened the spines of many legislators who had been worried but silent. The Republicans wisely kept in the background and let opponents of the bill in the President’s own party lead the fight. The White House was increasingly alarmed by the disaffection of loyal New Dealers, but the President continued to scoff at any suggestion of compromise. To anxious members of his official family his stock answer was: “The people are with me; I know it.”