The conventional view is that FDR's 1937 "court-packing" plan failed. But his attacks on the Supreme Court may have had a lot to do with one of the most consequential doctrinal shifts in its history.
I actually think FDR's court-packing plan made sense--he didn't add a justice whenever another reached 70 but when that justice refused to retire. It was a good way of keeping the "life time appointment" permissible because there is nothing that says a justice can't cut his appointment short by retiring. Nowadays, the age would have to be rather older.
Why did Congress reject it? I suspect in part because despite its unpopular decisions, it was still seen as a respectable institution, even revered. As far as I know, there wasn't a constant stream of scandal involving money grubbing justices. (I have no idea whether there was a recusal problem). The rule of law has ALWAYS involved respecting as a matter of law the majority opinions of the justices even if you disagree with those opinions, so long as the justice gives arguable reasons and doesn't appear to be personally corrupt. The response is to try to find workarounds via Congress that meet the objections of the court. And at LEAST the FDR court invoked the sense of predictability that goes along with adherence to precedent until at least some justices realized that a tipping point had been reached, with precedent both unpopular and actually hurtful to the country as a whole. (I'm not saying that happened with Roberts, but as an example of the respect felt for the court).
Steve, I have read elsewhere (McCullough's biography of Truman, maybe? Other places?) that well before FDR introduced his court-packing legislation, it was well known in DC that his Administration would introduce such a plan. The actual introduction was no surprise. So Justice Roberts certainly knew it was coming, before his vote in West Coast Hotel? What do you think? This is in line with your pointing out the election landslide, but more specifically suggests that, indeed, Roberts "switched" because he saw what was coming..... Roberts was a politically savvy person, and his public explanation for the switch ("it was just a different case than prior ones) has never felt very convincing.....
For more detail and the role of both the Retirement Act and the Attorney General's Standing Act (the latter containing the three-judge court provisions along with new standing for the AG to participate from the outset in constitutionality cases, both of which are the work of Congressman Hatton Sumners, see: Josiah Daniel, “What I Said W “What I Said Was ‘Here Is Where I Cash In’”: the Instrumental Role of Congressman Hatton Sumners in the Resolution of the 1937
I actually think FDR's court-packing plan made sense--he didn't add a justice whenever another reached 70 but when that justice refused to retire. It was a good way of keeping the "life time appointment" permissible because there is nothing that says a justice can't cut his appointment short by retiring. Nowadays, the age would have to be rather older.
Why did Congress reject it? I suspect in part because despite its unpopular decisions, it was still seen as a respectable institution, even revered. As far as I know, there wasn't a constant stream of scandal involving money grubbing justices. (I have no idea whether there was a recusal problem). The rule of law has ALWAYS involved respecting as a matter of law the majority opinions of the justices even if you disagree with those opinions, so long as the justice gives arguable reasons and doesn't appear to be personally corrupt. The response is to try to find workarounds via Congress that meet the objections of the court. And at LEAST the FDR court invoked the sense of predictability that goes along with adherence to precedent until at least some justices realized that a tipping point had been reached, with precedent both unpopular and actually hurtful to the country as a whole. (I'm not saying that happened with Roberts, but as an example of the respect felt for the court).
We don't live in that world today.
Thanks for a concise explanation of the “switch in time”. I haven’t read a better one.
Steve, I have read elsewhere (McCullough's biography of Truman, maybe? Other places?) that well before FDR introduced his court-packing legislation, it was well known in DC that his Administration would introduce such a plan. The actual introduction was no surprise. So Justice Roberts certainly knew it was coming, before his vote in West Coast Hotel? What do you think? This is in line with your pointing out the election landslide, but more specifically suggests that, indeed, Roberts "switched" because he saw what was coming..... Roberts was a politically savvy person, and his public explanation for the switch ("it was just a different case than prior ones) has never felt very convincing.....
For more detail and the role of both the Retirement Act and the Attorney General's Standing Act (the latter containing the three-judge court provisions along with new standing for the AG to participate from the outset in constitutionality cases, both of which are the work of Congressman Hatton Sumners, see: Josiah Daniel, “What I Said W “What I Said Was ‘Here Is Where I Cash In’”: the Instrumental Role of Congressman Hatton Sumners in the Resolution of the 1937
Court-Packing Crisis, 54 UIC J. Marshall L. Rev. 379 (2021), available free at https://repository.law.uic.edu/cgi/viewcontent.cgi?article=2844&context=lawreview