Court-packing in Context

Abstract

two related questions: First, what were the Court-packing plan’s prospects for ultimate congressional enactment, and second, to what extent, if any, did the pendency of the Court-packing plan affect the outcomes in the Court’s major constitutional decisions in the spring of 1937? Perhaps as a consequence of this focus, proposed alternatives to Court-packing tend to be treated as something of a sideshow. Discussion of such proposals typically concentrates on the strategic reasons for which Roosevelt rejected them in favor of his own Court-packing plan. Largely overlooked is the rich contemporary legal, newspaper, and periodical literature in which these alternative measures received sustained legal and policy consideration.3 Similarly, the Senate Judiciary Committee hearings on Roosevelt’s bill, at which such proposals also were the subjects of extensive deliberation, routinely receive rather limited exploration. In some cases, discussion is largely confined to the manner in which the bill’s opponents used the hearings to delay its ultimate floor consideration.4 Other treatments offer more There is a curious lacuna in the literature on the Court-packing crisis of 1937. The proposal for reform of the federal judiciary that received the most attention and consideration in that year was, of course, president Franklin D. Roosevelt’s proposal to enlarge the membership of the Supreme Court from nine to fifteen justices.1 Yet, both before and throughout the battle over the president’s “Court-packing plan,” members of Congress introduced a wide variety of alternative measures for addressing their dissatisfaction with recent Supreme Court decisions invalidating various state and federal laws designed to relieve economic distress and stimulate economic recovery.2 Some of these proposals would have taken statutory form, while many others would have amended the Constitution in various respects. In the end, none of these measures was reported out of Committee. Nevertheless, they were the subject of serious discussion in multiple contemporary venues. Scholarly treatments of the Courtpacking episode typically are focused on Court-packing in Context