When the first Supreme Court of the United States was created by the Judiciary Act of 1789, it had six members: one chief justice and five associate justices. In 1801, the lame-duck Federalist Congress reduced the court’s size to five to deny Thomas Jefferson a nomination upon the next vacancy. A year later, the newly installed Jeffersonian Congress restored the sixth seat. Between 1807 and 1837, Congress added three spots on the court in
order to staff three new judicial circuits in the expanding republic. During the Civil War, while momentous wartime cases were pending before the court, the Republican Congress increased the number of justices to 10. In 1866, after Lincoln’s assassination, it reduced the court’s authorized seats to seven so as to deny nominations to Andrew Johnson. Congress restored two of the seats upon the election of Ulysses S. Grant, who nominated new justices on the same day the court issued a consequential decision deeming the Republican paper money system unconstitutional. After the two new members were confirmed, the court reversed that decision. The number of seats on the Supreme Court has remained at nine ever since.
In her new book, FDR’s Gambit: The Court Packing Fight and the Rise of Legal Liberalism, the distinguished historian Laura Kalman has written the best account of the one time in the past century and a half that the number of justices seemed likely to change: when Franklin Delano Roosevelt, in the midst of his epic clash with the federal judiciary over the fate of the New Deal, tried and failed to radically increase the number of seats on the court. Kalman offers a blow-by-blow account of the law and politics behind what Roosevelt’s political adversaries successfully branded as his attempt to “pack the court.” She captures what was at stake in the fight, lays out FDR’s options, and rehearses the political tactics of the contending sides—the thrusts and parries, the missteps and the ingenious maneuvers. We may never have a better recounting of the law and politics of this particular moment of history.
Kalman’s engaging book is timely, too. In the years since a Republican Senate prevented Barack Obama from filling the seat vacated by the death of Justice Antonin Scalia in 2016, some Democrats have revived talk of altering the court’s size. Such proposals grew louder when Donald Trump’s one-term presidency produced three new justices, including one (Amy Coney Barrett) who took the seat vacated by the death of Ruth Bader Ginsburg weeks before the 2020 elections. But critics from across the political spectrum deride the idea and point to Roosevelt’s thwarted effort. For generations, they note, observers have condemned the maneuver as an unprincipled and politically ham-fisted mistake, in which FDR gambled away a good deal of his considerable political capital on a futile and foolish attempt to influence the court.
Kalman disagrees. Roosevelt’s attempted court packing, she contends, was a savvy, high-stakes move by perhaps the most politically astute president in US history. Yes, Roosevelt made mistakes. But in her meticulous account, Kalman shows that he won his struggle to transform the American constitutional order because of, and not merely in spite of, his attack on the court. The court-packing initiative shielded Roosevelt’s great legislative triumphs from judicial interference in a way that no other available strategy could have accomplished.
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The story of Roosevelt’s court-packing effort begins with the Supreme Court that he inherited when he arrived in the White House in 1933. For decades, the court had obstructed efforts to enact legislation adapted to the felt imperatives of the industrial era. The court struck down the first peacetime federal income tax in 1895. It rejected state labor laws limiting workers’ hours in 1905 and overturned a federal minimum wage law for women in 1923. It restricted the application of antitrust law to manufacturing in 1895; offered a narrow interpretation of pro-union legislation in 1922; and twice struck down laws prohibiting employers from banning union membership, first in 1908 and again in 1915. True, the court had also upheld any number of legislative reforms: Maximum-hour laws for women workers survived, as did maximum-hour laws in dangerous industries and workers’ compensation laws for industrial injuries. The challenge for reformers, however, was that they could rarely predict which laws would pass muster and which would not in the forum of the court. Progressives spent vast political energy trimming the sails of reform legislation in an often quixotic effort to anticipate the justices’ dictates. As a result, many reform laws had been “maimed and twisted” on their way to passage, as one insider remarked, in order to commend them to the courts.
The ravages of the Great Depression led Roosevelt and the substantial new Democratic majorities in the House and Senate to set aside concerns about the court, at least for the time being. The gross domestic product had fallen by 26 percent from its 1929 peak. More than 12 million people were unemployed, constituting a quarter of the paid workforce. By 1932, the stock market had lost a stunning 90 percent of its value. In the New Deal’s famous first 100 days, emergency measures were boldly taken. New banking legislation offered foreclosure relief to farmers, created the Federal Deposit Insurance Corporation, and separated commercial banks from Wall Street investment banks. The Securities Act of 1933 imposed new regulations on the issuance of shares in publicly held companies. The National Industrial Recovery Act established public works programs and created a National Recovery Administration with broad powers to craft new regulations for American industry and labor. The Agricultural Adjustment Act did much the same for American farms.
After the 1934 midterm elections reaffirmed popular support for the New Deal, Roosevelt advanced another round of reforms. The Social Security Act established old-age pensions for many participants in the paid labor market, although it excluded agricultural and domestic work. The National Labor Relations Act, sponsored by Senator Robert Wagner from New York and supported by key elements of what would become the Congress of Industrial Organizations, or CIO, guaranteed most workers’ rights to collective action and established a system of mandatory collective bargaining between labor and capital.
But the concerns about what the Supreme Court would make of such monumental legislation never really subsided. Even in the summer of 1933, the influential TRB column in The New Republic speculated that the administration’s secret worry was that “all it is doing” would be ruled “null and void” by the courts.
In the spring of 1935, the lawmakers’ nightmare came to life. In Railroad Retirement Board v. Alton, the Supreme Court struck down the old-age pensions for railroad workers that Congress had created the year before, serving notice that it would be willing to rule against core elements of the New Deal. Three weeks later, on May 27, “Black Monday,” the justices made clear in a trio of decisions that the railroad pensions case was no anomaly. In Humphrey’s Executor v. United States, they ruled that Roosevelt could not fire federal officials who resisted his programs. In Louisville Joint Stock Land Bank v. Radford, they struck down a 1934 act of Congress protecting farmers from foreclosure. In Schechter Poultry v. United States, they delivered the third and, in some respects, biggest blow of the day by nullifying the National Industrial Recovery Act, which had been the centerpiece of Roosevelt’s first round of economic reform legislation. A year later, the court rejected the Agricultural Adjustment Act and a parallel law that did for coal mining what the NIRA had done for manufacturing and the AAA for agriculture. A subsequent 5-to-4 decision in Morehead v. New York ex rel. Tipaldo overruled New York State’s effort to craft a constitutional minimum-wage law for women, showing that the court would stand in the way of even the most popular reforms. In response, Roosevelt warned that the court had adopted “horse-and-buggy” definitions for the age of the railroad and the internal combustion engine.
The Supreme Court’s decisions in 1935 and ‘36 were not all bad for the New Deal. Dispatching the National Industrial Recovery Act was actually a gift; it was an open secret that the law’s unwieldy system of corporatist industrial codes had, in Kalman’s unsparing formulation, “flopped” when put into practice. The court’s ruling allowed the administration to pivot to so-called Second New Deal programs like the National Labor Relations Act and the Social Security Act. The bigger problem was that the rulings of 1935 and ‘36 created roadblocks for these crucial new legislative programs as well. Cases like Morehead reasserted the court’s commitment to old, conservative doctrines like freedom of contract and a narrow definition of interstate commerce. Schechter Poultry, moreover, had proposed potentially broad new limits on the discretionary rule-making authority of New Deal administrators. The National Labor Relations Act and the Social Security Act were both exceedingly vulnerable to constitutional attack on each of these grounds.
The 1936 elections served as a political battleground between the New Deal and its critics. The president’s supporters celebrated 6 million new jobs and new government institutions to support the Democrats’ core white working-class constituency, while opponents derided FDR’s programs as collectivist. Claiming the mantle of the court, they rose to the defense, as they argued, of “the individual citizen in his constitutional rights.” Democrats countered by charging that a court made up of nine old men appointed by presidents “now dead or repudiated” had made itself, in the words of the New York Daily News, “the sovereign power of the United States.”
After the Democrats won in a landslide victory, Roosevelt decided to act. Shortly after his second inauguration in early 1937, he announced his support for a bill that would give him six appointments to the court. The bill came as a surprise to the Washington press corps, and it was a shock to FDR’s allies in Congress as well. The initiative, which Attorney General Homer Cummings had designed in near-secrecy, proposed to create one new seat on the court for every justice not retiring within six months of his 70th birthday. The transparently pretextual rationale was that the bill would help a court hindered by age and workload. But everyone understood, for better or worse, that the president wanted more votes in favor of the New Deal.
Substantial opposition appeared almost instantly in the Senate, where Roosevelt’s longtime foes like Republican William Borah and erstwhile allies like Democrat Burton Wheeler emerged as resolute critics of the idea. Newspaper magnate Frank Gannett, whose father-in-law had seen a promising judicial career derailed two decades earlier by a similar progressive political backlash, coined the term “court packing” and established an influential National Committee to Uphold Constitutional Government. The American Bar Association came out strongly against the bill, with 86 percent of its members opposed to it. Within the legal profession, self-consciously heterodox professional groups like the Yale Law School faculty and the left-leaning National Lawyers Guild supported the president’s proposal. But an emerging coalition of civil libertarians and conservative corporate lawyers saw it as a threat to judicial protection against an overweening regulatory state. Even the national pastime was drawn into the fray: A plane flying over a Washington Senators baseball game towed a banner reading “Play the Game. Don’t Pack the Court.”
The sitting justices made their views known, too. James McReynolds, a dyspeptic Woodrow Wilson appointee best remembered for his anti-Semitism and racism, spoke out publicly against the president’s proposal. Chief Justice Charles Evans Hughes cautiously rebuked the bill’s purported rationale in a letter to Congress showing that the court was up-to-date in its work. At age 74, Hughes was himself over the bill’s age threshold, as was Louis Brandeis, who was usually an ally of the administration but had turned 80 in 1936. Brandeis’s dismay at the proposal contained a cryptic note of regret: The president, he confided to one administration insider, “has made a great mistake. All he had to do was wait a little while.”
Brandeis’s point became clear at the end of March. After two years of decisions reversing reform legislation, the court issued a decision upholding a minimum-wage law in Washington State for women workers. The opinion, in West Coast Hotel v. Parrish, seemed to reverse the 1936 Morehead decision striking down a similar law in New York. Unbeknownst to the administration, the crucial vote in the case had been cast three months before the unveiling of the court-packing bill: Justice Owen Roberts had switched his vote from the Morehead decision at a December conference of the justices. The court’s formal decision in the case had been delayed to allow participation by Justice Harlan Fiske Stone, who had been ill at the time of the conference. The court, it seemed, had decided to relent even before Roosevelt moved to pack it.
The minimum-wage case was the first in a stream of decisions sustaining the core of the Second New Deal. In April, a closely divided court upheld the National Labor Relations Act. In May, the justices reversed themselves on the Agricultural Adjustment Act and upheld the old-age-pension provisions of the Social Security Act. Intentionally or otherwise, these decisions in the administration’s favor stripped FDR’s court-packing effort of its urgency and helped tip the scales against court reform.
For his part, Roosevelt refused to retreat from the bill, even after a key Senate committee rejected it in late May. But when Senator Joseph Robinson of Arkansas, the powerful majority leader of the Senate and a crucial supporter of the bill, died of a heart attack on July 14, the bill’s prospects dimmed further. A few weeks later, on the train returning from Robinson’s funeral in Arkansas, FDR’s own vice president, John Nance Garner, quietly lobbied key senators against the bill and sealed its demise.
The results, at least according to the now-standard version of the story, were dismal for Roosevelt. His court-packing attempt had splintered the Democrats. Alongside a renewed economic recession and Roosevelt’s futile efforts to push out the most conservative elements in his party, the episode revealed deep rifts in the New Deal coalition. The midterm elections in November 1938 saw historic losses for the Democrats, producing what the late historian Alan Brinkley memorably called “the end of reform.” To make matters worse, the passage of time seemed to render the entire costly episode pointless. The archconservative Justice Willis Van Devanter retired from the court at the end of its momentous 1936–37 term (a lower-profile bill providing full pay to justices who retired after turning 70 had helped him out the door). Justice George Sutherland’s retirement and Justice Benjamin Cardozo’s death followed in 1938. A year later, Brandeis retired and Justice Pierce Butler died; in 1941, Chief Justice Hughes and James McReynolds both retired. Roosevelt’s first term had not seen a single vacancy on the court, but over a six-year stretch beginning in the summer of 1937, he made an extraordinary eight appointments to the high bench—“more justices” (as one historian has pointed out) “than any president since George Washington.” The president ended up packing the court after all. If only, as Brandeis had noted, he’d waited.
So goes the usual story of FDR’s court-packing attempt, which Kalman handles with care. But she departs in important ways from the narratives offered by chroniclers like Jeff Shesol, whose compelling 2010 book Supreme Power: Franklin Roosevelt vs. the Supreme Court was the best book on the subject until now. Most observers of the court have concluded that the lesson of FDR’s gambit is that court packing is a foolish political tactic. Thoughtful liberal jurists like Harvard Law School’s Noah Feldman view it as a cautionary tale of overreach. Gleeful conservative media commentators like Fox News’ recently departed Tucker Carlson point to court packing as powerful evidence of the Democrats’ hypocrisy. Senator Mike Lee, a Republican from Utah, published a book last year—Saving Nine: The Fight Against the Left’s Audacious Plan to Pack the Supreme Court and Destroy American Liberty—celebrating the defeat of court packing and decrying those who propose to revive it. Lee’s book, and the political project behind it, mark nearly 90 years in which Republicans have deployed FDR’s court-packing attempt as an ideological weapon against the New Deal order and its increasingly tattered coalition. Understandably, presidents ever since then have steered clear of this legendary error committed by the normally sure-footed Roosevelt.
Kalman offers a spirited and politically astute alternative story, one that emphasizes the dire risks to Roosevelt’s legislative agenda and his limited set of strategic options. Core pieces of the New Deal were before the courts in 1937. The new Social Security system and Congress’s new collective bargaining regime promised to change the lives of tens of millions of people in fundamental ways. Neither went far enough: By exempting agricultural and domestic labor, Social Security excluded 65 percent of Black workers as well as more than a quarter of white workers. Robert Wagner’s National Labor Relations Act had flaws that allowed employers to flout the spirit and often the letter of the law. But both laws are with us still today, even if the Wagner Act is a mere shadow of its former self.
Kalman’s observation is that the court’s 1935 and ‘36 decisions promised to smother these two massive legislative programs in the cradle—and that the moves available to Roosevelt to save them were mostly unappealing. Many at the time urged a constitutional amendment that would retroactively authorize Roosevelt’s legislative program. Constitutional amendment proposals on the table included expanding the regulatory authority of Congress, creating a mandatory retirement age for justices, authorizing a supermajority of Congress to override the court, and requiring a supermajority on the court itself to strike down acts of Congress. Even Alf Landon, the Republican nominee in the 1936 presidential election and a bitter critic of the New Deal, proposed a constitutional amendment that would have allowed states to regulate wages and working conditions. (Landon opposed amendments that would have added to the power of Congress.) Whether any of these amendments were a good idea or not, none gained traction on Capitol Hill. In February 1937, Senate majority leader Robinson observed that “at least 22 amendments to the Constitution” had been presented in Congress. “Not one of them,” he added, “could pass both bodies by even a majority.” By the summer of 1937, Robinson cited 50 pending amendments but said he couldn’t “find two Senators in favor of any of them.”
A big problem for the constitutional amendment strategy was that it would be virtually impossible to get three-quarters of the states to ratify an amendment, at least not in any decent time frame. An amendment to allow Congress to regulate child labor had languished in the states for nearly a decade and a half in an intractable process that Roosevelt called a “long year-after-year ordeal.” Today, 86 years later, child labor is once again on the rise, including in dangerous jobs, and the amendment is still 10 states short of ratification.
Given the obstacles to amending the Constitution, critics of the court in the White House and Congress turned to reforms that could be achieved by simply passing new laws. One such proposal was to strip federal courts of the jurisdiction to entertain constitutional challenges to federal laws. But as the recent commission tasked by President Biden to consider Supreme Court reform proposals observed, any such legislation would almost certainly be fraught with difficulties. Stripping the federal courts of jurisdiction would not affect state courts and would thus create the risk of a chaotic patchwork of state-by-state constitutional rules. New Deal legislation relied on the courts to vindicate legislative gains such as new rights for workers and new obligations for employers. Even if reformers could block the federal courts from overruling laws on constitutional grounds, they had little or no way to prevent judges’ objections to such laws from fatally undermining them in myriad other ways.
Other proposed solutions incentivized retirement, such as the bill that helped prompt Van Devanter to step down in 1937. But such carrots hardly guaranteed a change in the court fast enough to avoid catastrophic decisions. Another strategy proposed statutory supermajority requirements on the court or to allow congressional overrides of judicial rulings. But such laws were likely to be ruled unconstitutional by the very court they aimed to control.
In light of these grave shortcomings, adding justices to the court emerged as the least-bad choice in a set of poor options, and therefore Roosevelt seized on it. To be sure, he made serious tactical mistakes in advancing the bill he put forward. The New Republic wrote in frustration that the president’s “legislative tactics…ought to be remembered as a horrible example of what not to do.” Administration insider Thomas Corcoran was eager to distance himself from the affair and condemned ithe effort as “amateurishly executed.”
One crucial mistake Roosevelt made was to rely not on the well-connected Corcoran but rather on Cummings, a corporate lawyer from Connecticut who lacked the D.C. political know-how that might have helped him steer the bill through Congress more successfully. It was Cummings who had urged the cloddish pretext for the bill of assisting an aging court with its workload. By the spring of 1937, the president had moved away from this embarrassing gimmick, but it was too late: The opportunity to mobilize FDR’s vast political constituency against the judicial overreach of the court had already been squandered.
Roosevelt also could have been quicker to embrace a compromise. Within weeks, members of Congress were circling around a narrower bill that would have moved the age threshold from 70 to 75, producing two appointments instead of six. As Kalman describes it, for several crucial weeks in the late spring of 1937, Roosevelt was unwilling to accede to such a bill. His reluctance may have been fateful, but it was understandable, too. Kalman draws special attention to an influential strategy memo in which an administration insider observed what was doubtless true: Two more votes might not suffice to get crucial programs through the court’s gauntlet, though Roosevelt would own the results from any court to which he and Congress had added seats. To push through a court-packing plan and then lose anyway would be the ultimate defeat.
There were good reasons to think in 1937 that adding a substantial number of justices was the best available move. Kalman suggests that it would have been the right course even if Roosevelt had enjoyed the benefit of hindsight. Both the Congress of Industrial Organizations and the American Federation of Labor strongly supported the bill. So did James Landis, the chairman of the Securities and Exchange Commission and the dean-designate of Harvard Law School. Future justice Robert Jackson testified in its favor.
The court’s decision in West Coast Hotel did not undo the need for court reform; nor did it completely undermine the bill’s political prospects. Instead, as The New York Times observed, the tight 5-to-4 margin in that case and in the rest of the spring 1937 cases upholding various New Deal programs underscored how much the country’s fate turned on the caprices of a single justice. Even as late as July, after Robinson’s death in the Senate, key administration insiders had nearly brokered a deal with the bill’s leading Democratic critic, Senator Burton Wheeler, so that they might pass the revised two-justice bill.
Yet even in failure there was victory, too. Kalman’s conclusion is that the threatened court packing was indispensable in defending the New Deal from a hostile court. Even if Roosevelt had known, as Brandeis did, that Roberts had switched his vote on the minimum wage in the court’s private December 1936 conference, he could hardly rely on Roberts to continue to vote in favor of reform. Indeed, a creative study by Stanford law professor Dan Ho and University of Michigan political scientist Kevin Quinn shows that Roberts’s voting pattern quickly reverted to conservative form after a brief swerve leftward. “It was not certain” in the spring of 1937, as Roosevelt himself observed, whether cases such as West Coast Hotel would mark a permanent change in the court’s orientation or would prove instead mere temporary aberrations.
To be sure, Roosevelt knew that he would be able to remake the court in the years after the crucial 1937 term as the aging justices retired or died. But Kalman insists, rightly, that this also entailed too grave a risk. Imagine what would have happened had the National Labor Relations Act been struck down in the spring of 1937, or if the Social Security Act had been blocked: Would the New Deal have waited in limbo for a newly composed court to rescue it? The damage to the nation would have been enormous. Judicial precedents for the unconstitutionality of such legislation would have been made that much stronger—and anyway, the momentum of 1936 would have been lost. Political power is fleeting. The sit-down strikes of spring 1937 proved damaging for Roosevelt. Later that same year, the economy slid into what the press called the “Roosevelt Recession.” The 1938 midterms would probably have gone badly for Roosevelt even if he hadn’t pursued the addition of justices to the court—but the legislative coalition that had enacted the New Deal’s transformative legislation would very likely not have reappeared.
Sympathetic historians have long echoed the assessment that FDR offered in the months and years after the demise of his proposal: that he had lost the battle but won the war. Kalman goes even further. “Who was the fool?” she asks. In the years to come, the Roosevelt position went on to secure more legislative achievements and win reelection.
Given such successes, there might be good reasons to consider court packing or other reforms again today. Even moderates denounce the justices’ contempt toward Congress. On the question of abortion rights, the court has put itself on a collision course with public opinion. In the term that is concluding as I write these words, it has cut back the Clean Water Act and narrowed the right to strike. It appears poised to issue major opinions on affirmative action, gay rights, student loan forgiveness, and the theory of the so-called “independent state legislature,” which threatens to undermine state courts’ power to review state legislatures’ lawmaking around elections.
Kalman, however, rejects court packing as a response to our moment of turmoil over the court. Roosevelt’s court-packing attempt, she argues, shows just how difficult it would be to alter the court’s size in a contested political climate. With all of his political clout, and with overwhelming majorities in both houses of Congress, he was still unable to drive his effort home. No political coalition in American politics for the foreseeable future is likely to have a mandate sufficiently strong to take another run at FDR’s shrewd but costly gambit—and when such a coalition does form, the circumstances may favor one of the rival reforms that, under the conditions of the New Deal, proved unsuitable for Roosevelt’s moment. Either way, though, Kalman’s compelling volume puts the Supreme Court’s structure back on the political agenda. The defiant gambit of the 20th century’s most transformative president was not futile after all.
