EMBOLDENED by his landslide electoral victory in the election of 1936 and frustrated with an old, conservative Supreme Court, to which he had yet been able to appoint a justice and that he perceived was intent on slowing down the progress of the New Deal, President Roosevelt made a bold and perhaps miscalculated decision to direct an internal shift in the power of the judicial branch.

March 9, 1937
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"The balance of power... has been tipped out of balance by the Courts in direct contradiction of the high purposes of the framers of the Constitution. It is my purpose to restore that balance"
In a private meeting with cabinet members and the Senate Democratic Leadership, Roosevelt announced a plan to introduce legislation that would reform the federal judiciary. Under the guise of easing the backlog of cases that faced the "aged, overworked justices," Roosevelt intended to ask Congress for the power to appoint one additional judge to the federal judiciary (including the Supreme Court) for every justice who had reached the age of seventy but declined to retire. While his ostensible purpose was to increase the efficiency of the judiciary, it was clear that Roosevelt was targeting six of the nine Supreme Court justices who had challenged his domestic programs.

The make-up of the Hughes Court when Roosevelt took office was relatively balanced. Of the nine justices, the conservative coalition of McReynolds, Van Devanter, Sutherland and Butler often clashed with the liberal justices, Brandeis, Stone and Cardozo, with Justice Owen Roberts and Chief Justice Charles Evans remaining more or less moderate. While at first the Court had accepted most of Roosevelt's programs, in the previous two years, led by Chief Justice Hughes, it had ruled in several cases that the executive branch had unconstitutionally assumed powers reserved for the legislature. The Court invalidated portions of New Deal measures including, in Schecter v. United States, the price-fixing powers of Title I of the NIRA and also in U.S. v. Butler. Additionally, the court had abrogated the Bitumonious Coal Conservation Act (BCC) (also called "Little NIRA") and portions of the Agricultural Adjustment Act, among others. While angry over what he saw in those cases as an attempt to undermine his program, when conceiving his court packing plan Roosevelt was perhaps most concerned with the Court's impending decisions on the Wagner Act (National Labor Relations Act) and the Social Security Act.

The Hughes Court

Validating the concerns of many who felt that the executive was attempting to assume too much power and infringing on the independence of the other two branches, the judicial reorganization plan sparked intense opposition and mobilized conservative New Deal foes. Adding fuel to the fire was a series of political miscalculations by the president, costly mistakes that would eventually lead to the end of the New Deal. Angered that they had not been consulted prior to his announcement and aggravated by what they saw as territorial encroachment, Senate Democrats provided some of the strongest resistance to his proposal. But the negative response was not from Congress alone. The Chief Justice fought vigorously against reorganization, at one point providing court records as evidence to debunk Roosevelt's criticism and demonstrate the Court's efficiency. Neither the media nor the American public stayed silent long, using a barrage of editorials and letters to Confgress, respectively, as their battle weapons.

"Shall the Supreme Court be turned into the personal organ of the President?...If Congress answers yes, the principle of an impartial and independent judiciary will be lost in this country." - Chicago Tribune
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Chicago Tribune
But just as the opposition was running strong, an unexpected turn of events took control of the reigns. In March the Supreme Court upheld as constitutional both the Wagner Act and the Social Security Act and in May Justice Van Devanter announced his retirement. The appearance of Court support for his policies and an opportunity for a Supreme Court appointment took the steam out of Roosevelt's court packing plan and the measure was allowed to die in committee, remanded there by a 70-20 Senate vote.

Roosevelt had a Court he could live with (he would eventually appoint eight justices while in office) but the damage had been done. The election of 1936, in which he had campaigned against some anti-New Deal Democrats, along his proposal and political handling of judicial reorganization had secured him numerous enemies.

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The energized conservative opposition succeeded in blocking much of his remaining domestic programs, and as his relations with Congress declined, so did the New Deal. Furthermore, while the New Deal was built on deficit spending, one of the pillars of FDR's economic policy was his belief in a balanced budget. As he cut federal spending, the nation fell into an economic recession, as bad as any it had experienced, that saw unemployment jump to 20 percent while production and industrial output declined. Although a few laws would be passed in 1938, the politics and economics of the last years of the decade brought the New Deal to a close. In his annual message to Congress in 1939, the president shifted his focus to the tense international scene and of his requested $9 billion budget, almost one-sixth would go to defense. Contrary to the style and energy with which it had arrived, the New Deal slipped out of the decade unnoticed. Full economic recovery would come until World War II, but psychologically, the nation had recovered long ago.