Court Packing: How Franklin D. Roosevelt Reshaped the U.S. Supreme Court

In 1937 nobody was more popular than Franklin D. Roosevelt.

His “New Deal”–hinged to Social Security and unemployment benefits–catapulted FDR to a 523-8 electoral landslide (60.8% of the popular vote) to a second term in 1936.

Only Ronald Reagan would come close to that margin of victory in 1984 with 525-13 electoral votes (58.8% popular vote).

But Roosevelt had a problem with parts of his New Deal being constitutional and the Supreme Court of the United States often weighed in against him.

That’s when FDR introduced the Judicial Procedures Reform Bill of 1937 that would add SCOTUS justices–presumably ones that favored his New Deal politics–to get his agenda legally passed.

The central provision of his bill would have granted a U.S. president power to appoint an additional justice to the U.S. Supreme Court, up to a maximum of six, for every member of the court over the age of 70 years.

At the time, six of the 9 justices were over 70 and the U.S. Supreme Court had leaned to the Right for decades thanks to Republican dominance since the Civil War. Until Franklin D. Roosevelt, there had only been two Democrat Presidents–Grover Cleveland and Woodrow Wilson–between 1868 and 1932.

And the U.S. Supreme Court reflected this Republican rule.

But in 1937 the Great Depression still raged. And it was a year of more losses. Many Americans were now questioning the logic and cost of Roosevelt’s New Deal. And his bill to enlarge the Supreme Court smacked of a power grab by the executive branch (setting off alarm in both the House and Senate). Eventually the Senate rejected Roosevelt’s idea (July 22, 1937) and his bill died.

Despite the political rebuke, FDR’s popularity remained.

He was re-elected to a third and fourth term (1940, 1944). Of course this circumstance prompted the 22nd Amendment (1951) to limit future U.S. presidents to two terms.

Nevertheless, in his 12 years as U.S President, Roosevelt appointed eight new Supreme Court justices, all of whom reflected his political ideology:

• HUGO BLACK (1937): A “thumping evangelical New Dealer” Alabama senator and a member of the Ku Klux Klan.
• STANLEY REED (1938): A staunch Kentucky Democrat who supported New Deal policies. He never graduated from law school.
• FELIX FRANKFURTER (1939): A liberal Austrian immigrant who was hard to pin down politically, yet considered a radical for his views. He founded the ACLU.
• WILLIAM O. DOUGLAS (1939): The youngest SCOTUS appointee at age 40, Douglas was a “progressive civil libertarian” who served the Court for 36 years. Known for his “pithy” first draft opinions, penned under 20 minutes, Douglas also wrote 30 books.
• FRANK MURPHY (1940): A liberal Democrat Catholic who served as governor of Michigan. Dissented on FDR’s internment of the Japanese during WW2, using the word “racism” for the first time in a SCOTUS opinion.
• JAMES F. BYRNES (1941): A fervent New Deal South Carolina Democrat. He supported FDR’s court-packing bill.
• ROBERT H. JACKSON (1941): A New York Democrat and New Deal supporter who served as U.S. Solicitor and Attorney General. Known for his public feud with fellow jurist Hugo Black, Jackson also lauded for his superior opinion writings and commitment to due process.
• WILEY RUTLEDGE (1943): A Kentucky Democrat, he was among the most liberal SCOTUS justices (most of his views not popular until the 1960s Warren Court emerged). A committed New Dealer, he supported FDR’s court packing plan,. Rutledge served six years, dying of a massive stroke at age 55.

In the end, Franklin D. Roosevelt didn’t need to enlarge the U.S. Supreme Court.

His long tenure as a U.S. President allowed him to replace eight of the nine justices, all who were Democrats and sympathetic to his New Deal policies. Furthermore, the rulings of Roosevelt’s Supreme Court appointees reshaped America beginning in the 1950s. And this transformation would be helped by other Democrat Presidents. Between 1932 and 1980, five of the nine U.S. Presidents were Democrats (FDR, Truman, JFK, Johnson, Carter), 32 of 48 years.

It’s why, after 1950, the U.S. Supreme Court leaned to the Left for 70 years, offering rulings over some of the most transformative legal cases related to civil, religious, parental and personal rights.

From prayer in schools to abortion to gay marriage, the effects of Democrat appointees to the U.S. Supreme Court reverberated for decades.

And then in 2016, it happened.

With President Donald Trump’s three conservative appointees (Neil Gorsuch, Brett Kavanaugh, Amy Coney Barrett), the U.S. Supreme Court suddenly shifted to the right. These three Republican-appointed justices were joined by two other longstanding conservative justices Samuel Alito and Clarence Thomas. Chief justice John Roberts, a G.W. Bush appointee, occasionally rules to the RIGHT as well, creating a potential 6-3 super majority.

But despite its critics, this conservative shift reflected the political tone of the U.S. Presidency since 1980.

In the 40 years between Ronald Reagan and Donald Trump, twenty-four years were controlled by four Republican Presidents (Reagan, HW Bush, GW Bush, Trump), while the remaining sixteen were led by two Democrats (Clinton, Obama). Consequently a political SCOTUS shift to the RIGHT should be expected.

Ironically, in recent years many Democrats have again issued calls to “expand” the U.S. Supreme Court.

As more opinions–including Roe v. Wade–are overturned or decided by a more conservative juris view (known as the “strict constitutional” or literal position), this option is popular among those on the left side of the aisle.

However, constitutionally, the U.S. Supreme Court (nor any court) is intended to make law. A court’s only purpose is to give an opinion and ruling that makes a certain law valid or void. It’s why Roosevelt needed the U.S. Supreme Court on his side in 1937. It’s also why elections matter, especially national contests.

Our Founding Fathers knew that America’s laws need to be checked.

Not all laws are good laws. Similarly, U.S. Presidents (the executive branch) also need checked, because not all executive orders are good ones. The Supreme Court reflects the ultimate will of “we the people.” It may take decades for a shift (left or right) to fully manifest but when it does, it does so in a way that transforms the American landscape.

And depending on your political perspective, that’s either a good or bad thing. But in many ways these “checks and balances” are what makes the American “idea” GREAT. Our Founding Fathers were geniuses. And we are most fortunate. Can you imagine our lives without a U.S. Supreme Court? Without a group of legal experts to rule for (or against) the laws our legislatures–both state and federal–produce? To offer an opinion on executive (presidential) orders that can easily be over reaches and breaches of constitutional rights? 

Yes, our Courts may act “political” (even rogue) at times. And yes, certain Courts may overturn or correct earlier rulings. But these decisions only reflect how culture changes. American is always shifting, from left to right and right to left. Outside of an amendment to the U.S. Constitution, the Supreme Court is American’s best bet against tyrannical government. 

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DID YOU KNOW that the U.S. Supreme Court did not have a permanent place to do business until 1935? It’s true. For 146 years, the U.S. Supreme Court operated from chambers located in the U.S Capitol. Franklin D. Roosevelt wanted to make the Supreme Court a “co-equal” branch of government (even though the U.S. Constitution speaks to the judicial branch far less than the other two branches of U.S. government).

Roosevelt also felt that since the President has the White House and the Congress has the Capitol that the U.S. Supreme Court needed its own building. In many ways a permanent home for the U.S. Supreme Court philosophically reshaped its purpose for the 20th century. Up to Roosevelt’s time, Supreme Court rulings were often ignored and never considered to “legalize” anything. That was not its purpose. The role of the U.S. Supreme Court was simply to validate or invalidate law passed by state and federal legislators.