696 Chapter 26 The New Deal: 1933–1941
Roosevelt Tries to Undermine the Supreme Court
On January 20, in his second inaugural address,
Roosevelt spoke of the plight of millions of citizens
“denied the greater part of what the very lowest stan-
dards of today call the necessities of life.” A third of
the nation, he added without exaggeration, was “ill-
housed, ill-clad, ill-nourished.” He interpreted his
landslide victory as a mandate for further reforms,
and with his prestige and his immense congressional
majorities, nothing appeared to stand in his way.
Nothing, that is, except the Supreme Court.
Throughout Roosevelt’s first term the Court had
stood almost immovable against increasing the scope
of federal authority and broadening the general power
of government, state as well as national, to cope with
the exigencies of the Depression. Of the nine justices,
only Louis Brandeis, Benjamin N. Cardozo, and
Harlan Fiske Stone viewed the New Deal sympatheti-
cally. Four others—James C. McReynolds, Willis Van
Devanter, Pierce Butler, and George Sutherland—
were intransigent conservatives. Chief Justice Charles
Evans Hughes and Justice Owen J. Roberts, while
more open-minded, tended to side with the conserva-
tives on many questions.
Much of the early New Deal legislation, pushed
through Congress at top speed during the hundred
days, had been drafted without proper regard for the
Constitution. Even the liberal justices considered the
National Industrial Recovery Act unconstitutional
(theSchechterdecision was unanimous).
In 1937 all the major measures of the second
hundred days appeared doomed. The Wagner Act
had little chance of winning approval, experts pre-
dicted. Lawyers were advising employers to ignore
the Social Security Act, so confident that the Court
would declare it unconstitutional.
Faced with this situation, Roosevelt decided to
ask Congress to shift the balance on the Court by
increasing the number of justices, thinly disguising the
purpose of his plan by making it part of a general reor-
ganization of the judiciary. A member of the Court
who reached the age of seventy would have the option
of retiring at full pay. Should such a justice choose not
to retire, the president was to appoint an additional
justice, up to a maximum of six, to ease the burden of
work for the aged jurists who remained on the bench.
Roosevelt knew that this measure would run into
resistance, but he expected that the huge Democratic
majorities in Congress could override any opposition
and that the public would back him solidly. No astute
politician had erred so badly in estimating the effects
of an action since Stephen A. Douglas introduced the
Kansas-Nebraska bill in 1854.
Although polls showed the public fairly evenly
divided on the “court-packing” bill, the opposition
was vocal and influential. To the expected denuncia-
tions of conservatives were added the complaints of
liberals fearful that the principle of court packing
might in the future be used to subvert civil liberties.
What, Senator Norris asked, would have been the
reaction if a man like Harding had proposed such a
measure? Opposition in Congress was immediate and
intense; many who had cheerfully supported every
New Deal bill came out against the plan. The press
denounced it, and so did most local bar associations.
Chief Justice Hughes released a devastating critique;
even the liberal Brandeis—the oldest judge on the
court—rejected the bill out of hand.
For months Roosevelt stubbornly refused to con-
cede defeat, but in July 1937 he had to yield. Minor
administrative reforms of the judiciary were enacted,
but the size of the Court remained unchanged.
The struggle did result in saving the legislation of
the Second New Deal. Alarmed by the threat to the
Court, Justices Hughes and Roberts, never entirely
committed to the conservative position, beat a strate-
gic retreat on a series of specific issues. While the
debate was raging in Congress, they sided with the lib-
erals in upholding first a minimum wage law of the
state of Washington that was little different from a
New York act the Court had recently rejected, then
the Wagner Act, and then the Social Security Act. In
May Justice Van Devanter retired and Roosevelt
replaced him with Senator Hugo Black of Alabama, a
New Dealer. The conservative justices thereupon gave
up the fight, and soon Roosevelt was able to appoint
enough new judges to give the Court a large pro-New
Deal majority. No further measure of significance was
declared unconstitutional during his presidency. The
Court fight hurt Roosevelt severely. His prestige never
fully recovered. Conservative Democrats who had
feared to oppose him because of his supposedly invul-
nerable popularity took heart and began to join with
the Republicans on key issues. When the president
summoned a special session of Congress in November
1937 and submitted a program of “must” legislation,
not one of his bills was passed.The New Deal Winds Down
The Court fight marked the beginning of the end of
the New Deal. With unemployment high, wages low,
and workers relatively powerless against their employ-
ers, most Americans had liked New Deal labor legisla-
tion and sympathized with the industrial unions whose
growth it stimulated. The NRA, the Wagner Act, and
the CIO’s organization of industries like steel and
automobiles changed the power structure within the