University of Minnesota Law School

Scholarship Repository

Constitutional Commentary

2013

Court-Packing and Compromise

Barry Cushman

Follow this and additional works at: https://scholarship.law.umn.edu/concomm

Part of the Law Commons

Recommended Citation
Cushman, Barry, "Court-Packing and Compromise" (2013). Constitutional Commentary. 78.
https://scholarship.law.umn.edu/concomm/78

This Article is brought to you for free and open access by the University of Minnesota Law School. It has been accepted for inclusion in Constitutional
Commentary collection by an authorized administrator of the Scholarship Repository. For more information, please contact lenzx009@umn.edu.
!!!CUSHMAN-291-COURT-PACKING AND COMPROMISE.DOC (DO NOT DELETE) 8/9/2013 2:15 PM

Articles

COURT-PACKING AND COMPROMISE

Barry Cushman*

The controversy precipitated by Franklin D. Roosevelt’s

Court-packing Plan is among the most famous and frequently
discussed episodes in American constitutional history. During
his first term as President, Roosevelt had watched with mounting
discontent as the Supreme Court declared unconstitutional a
series of measures central to his New Deal. Aging justices whom
Roosevelt considered reactionary and out of touch had struck
down the National Industrial Recovery Act (“NIRA”), the
Agricultural Adjustment Act (“AAA”), federal railway pension
legislation, federal farm debt relief legislation, critical portions of
the Administration’s energy policy, and state minimum wage
legislation for women. In the spring of 1937 the Court would be
ruling on the constitutionality of such major statutes as the
National Labor Relations Act (“NLRA”) and the Social
Security Act (“SSA”), and a number of Roosevelt advisors
doubted that the Court as then comprised would uphold those
measures. The odds might have improved had FDR had an
opportunity during his first term to appoint one or more justices
to the Court, but no vacancies had occurred.
In November of 1936, Roosevelt enjoyed a spectacular
reelection victory, winning the electoral college vote by a margin
of 523-8. In the wake of this remarkable demonstration of public
support, the President decided to move against the Court. On
February 5, 1937, he sent to Congress a proposal to “reorganize”
the federal judiciary. The bill contained a provision that would
have empowered the president to nominate to the Supreme
Court one additional justice for each sitting justice who had not
retired within six months following his seventieth birthday. At

* John P. Murphy Foundation Professor of Law, University of Notre Dame.

Thanks to Patty Cushman, Rick Garnett, and Jill Hasday for helpful comments.

1
!!!CUSHMAN-291-COURT-PACKING AND COMPROMISE.DOC (DO NOT DELETE) 8/9/2013 2:15 PM

2 CONSTITUTIONAL COMMENTARY [Vol. 29:1

the time there were six justices fitting that description.

Accordingly, the bill, if enacted, would have permitted the
president to appoint six new justices immediately, thereby
enlarging the membership of the Court to fifteen. The bill
ultimately was rejected by the Senate, and never received serious
1
consideration in the House. A number of scholars have argued
that its prospects for congressional passage were never very
2
bright. It is often noted, however, that Roosevelt had numerous
opportunities to accept compromise proposals for dealing with
“the Court problem,” a number of which promised much better
3
chances of enactment. Yet the president repeatedly rejected
such proposals, insisting instead that congressional leaders press
4
forward with his own. As Professor James Patterson put it, FDR
“remained serenely confident, refusing even to discuss the
5
possibility of compromise.” A number of reasons have been
offered to explain Roosevelt’s recalcitrance, and I do not dispute
them here. Instead, I will suggest that such explanations are
incomplete, and that a fuller understanding of the president’s
calculations makes his posture appear more rational than is
commonly thought.
The reasons for Roosevelt’s rejection of some alternatives
to enlargement of the Court’s membership are well understood.
The president and his advisors elected not to pursue proposals to

1. See, e.g., Barry Cushman, The Court-Packing Plan as Symptom, Casualty, and
Cause of Gridlock, 88 NOTRE DAME L. REV. (forthcoming 2013).
2. JAMES MACGREGOR BURNS, ROOSEVELT: THE LION AND THE FOX 314
(1956); Lionel V. Patenaude, Garner, Sumners, and Connally: The Defeat of the Roosevelt
Court Bill in 1937, 74 SW. HIST. Q. 36, 51 (1970); MICHAEL E. PARRISH, THE HUGHES
COURT: JUSTICES, RULINGS, AND LEGACY 26 (2002); MARIAN C. MCKENNA,
FRANKLIN ROOSEVELT AND THE GREAT CONSTITUTIONAL WAR: THE COURT-
PACKING CRISIS OF 1937, at 561–62 (2002); E. Kimbark MacColl, The Supreme Court
and Public Opinion: A Study of the Court Fight of 1937, at vi (1953) (unpublished Ph.D.
dissertation, University of California at Los Angeles) (on file with the University of
California at Los Angeles Library).
3. See, e.g., JOSEPH ALSOP & TURNER CATLEDGE, THE 168 DAYS 78, 196-97, 207
(1938); LEONARD BAKER, BACK TO BACK: THE DUEL BETWEEN FDR AND THE
SUPREME COURT 182 (1967); MCKENNA, supra note 2, at 301–03, 323–24, 326, 440, 445–
47; JEFF SHESOL, SUPREME POWER: FRANKLIN ROOSEVELT VS. THE SUPREME COURT
345 (2010).
4. ALSOP & CATLEDGE, supra note 3, at 78, 95, 109–13, 161, 197, 207, 210;
BAKER, supra note 3, at 182, 190, 198–99 (1967); JAMES T. PATTERSON,
CONGRESSIONAL CONSERVATISM AND THE NEW DEAL: THE GROWTH OF THE
CONSERVATIVE COALITION IN CONGRESS 122 (1981); MCKENNA, supra note 2, at 303,
440, 445–47; BURT SOLOMON, FDR v. THE CONSTITUTION: THE COURT-PACKING
FIGHT AND THE TRIUMPH OF DEMOCRACY 126 (2009); SHESOL, supra note 3, at 327,
331, 345, 347–48, 439, 443, 446, 457; MacColl, supra note 2, at 288–89, 320, 328, 419, 426–
27.
5. PATTERSON, supra note 4, at 94.
!!!CUSHMAN-291-COURT-PACKING AND COMPROMISE.DOC (DO NOT DELETE) 8/9/2013 2:15 PM

2013] COURT-PACKING AND COMPROMISE 3

curtail the Court’s appellate jurisdiction, because this would

leave lower federal courts hostile to the New Deal with the
6
unsupervised power of judicial review. Proposed bills to require
a supermajority of the justices to invalidate federal legislation
7
were viewed as likely to be declared unconstitutional.
Moreover, if such a statute were upheld, it might reduce the
opportunities for the Court to protect citizens against
8
infringements of their civil liberties.
The president also rejected the possibility of amending the
Constitution to confer upon Congress greater regulatory
9
authority than the Court had been prepared to recognize. First,
Roosevelt believed that the problem lay not with the
Constitution but instead with the Court, and proposing such an
amendment might be seen as conceding that the Court’s
10
decisions invalidating New Deal measures had been correct.
Second, there was disagreement within the administration and in
the broader liberal legal community over the form that such an
amendment should take, and indeed over whether one should be
offered at all. Two years of effort by Justice Department lawyers
11
had failed to yield an acceptable proposal. In addition, any
amendment would have to garner a vote of two-thirds in each
house of Congress before winning ratification in thirty-six state

6. See Memorandum from Alexander Holtzoff, to Homer Cummings, Attorney

General, on the Appellate Jurisdiction of the Supreme Court 4 (Feb. 6, 1935)
(unpublished manuscript) (on file with the University of Virginia); ALSOP & CATLEDGE,
supra note 3, at 29; WILLIAM E. LEUCHTENBURG, The Origins of Franklin D. Roosevelt’s
“Court-Packing” Plan, 1966 SUP. CT. REV. 347, 386-87 [hereinafter LEUCHTENBURG,
Origins].
7. Letter from Franklin Roosevelt to Felix Frankfurter (Feb. 9, 1937), in
ROOSEVELT AND FRANKFURTER: THEIR CORRESPONDENCE, 1928–1945, at 382 (Max
Freedman ed., 1967); Memorandum from W.W. Gardner to the Solicitor General, on the
Congressional Control of Judicial Power to Invalidate Legislation 29-30, 64 (Dec. 10,
1936) (unpublished manuscript) (on file with the University of Virginia); FRANKLIN D.
ROOSEVELT, [1937 The Constitution Prevails] THE PUBLIC PAPERS AND ADDRESSES OF
FRANKLIN D. ROOSEVELT lxiv (1941); LEUCHTENBURG, Origins, supra note 6, at 386;
ALSOP & CATLEDGE, supra note 3, at 29; MCKENNA, supra note 2, at 440.
8. LEUCHTENBURG, Origins, supra note 6, at 386.
9. ALSOP & CATLEDGE, supra note 3, at 28–29; BAKER, supra note 3, at 130;
MCKENNA, supra note 2, at 440; SHESOL, supra note 3, at 328, 345–46, 381–82.
10. ROOSEVELT, supra note 7, at lviii–lxiii; ALSOP & CATLEDGE, supra note 3, at
28; LEUCHTENBURG, Origins, supra note 6, at 386; William E. Leuchtenburg, Franklin
D. Roosevelt’s Supreme Court “Packing” Plan, in ESSAYS ON THE NEW DEAL 74 (Harold
F. Hollingsworth & William F. Holmes eds., 1969) [hereinafter Leuchtenburg, “Packing”
Plan]; Diary of Homer Cummings 165 (Nov. 15, 1936) (unpublished manuscript) (on file
with the University of Virginia); Memorandum on Policy 3–5 (unpublished manuscript)
(on file with the University of Virginia).
11. ROOSEVELT, supra note 7, at lxii–lxiii; LEUCHTENBURG, Origins, supra note 6,
at 384; BAKER, supra note 3, at 130; PATTERSON, supra note 4, at 89; SHESOL, supra note
3, at 348. See Memorandum on Policy, supra note 10.
!!!CUSHMAN-291-COURT-PACKING AND COMPROMISE.DOC (DO NOT DELETE) 8/9/2013 2:15 PM

4 CONSTITUTIONAL COMMENTARY [Vol. 29:1

legislatures. Roosevelt did not believe that any acceptable

amendment could negotiate that course within a reasonable
12
time. For the same reasons, FDR opposed suggestions for an
amendment that would have imposed a mandatory retirement
age on the justices, or imposed supermajority voting
requirements on the Court, or permitted Congress to overrule
13
Supreme Court decisions. The President believed that state
legislatures were dominated by conservative interests and
14
lawyers, both of whom would resist any such amendment. As
he wrote to his old friend Charles C. Burlingham, who favored
the constitutional amendment approach, “You and I know
perfectly well that the same forces which are now calling for the
amendment process would turn around and fight ratification on
the simple ground that they do not like the particular
amendment adopted by the Congress. If you were not as
scrupulous and ethical as you happen to be, you could make five
million dollars as easy as rolling off a log by undertaking a
15
campaign to prevent ratification. . . . Easy money.” Finally, any
legislation that Congress might enact pursuant to an amendment
expanding its regulatory powers would remain subject to judicial
16
review and interpretation. Such a modification of the nation’s
charter could not truly defang an obstinately hostile judiciary.
The consideration and rejection of all of these proposals left
the administration with only one acceptable solution, and that
17
was enlargement of the Court by statute. But that did not end
the possibilities for compromise. There were indications early in
the struggle that members of Congress might have been
prepared to accept a bill providing for two or three additional

12. ROOSEVELT, supra note 7, at lxii; ALSOP & CATLEDGE, supra note 3, at 28–29;
BAKER, supra note 3, at 130–31; LEUCHTENBURG, Origins, supra note 6, at 384–86;
Leuchtenburg, “Packing” Plan, supra note 10, at 73; Letter from Franklin Roosevelt to
Felix Frankfurter, supra note 7, at 381–82 (Max Freedman ed., 1967); Memorandum on
Policy, supra note 10; Memorandum on Expediting the Amendment Procedure
(unpublished manuscript) (on file with the University of Virginia); SHESOL, supra note 3,
at 328.
13. MCKENNA, supra note 2, at 440, 447; BAKER, supra note 3, at 130–31; SHESOL,
supra note 3, at 348.
14. LEUCHTENBURG, Origins, supra note 6, at 384–85.
15. SHESOL, supra note 3, at 348 (quoting FDR to Burlingham, February 19, 1937,
PSF 165, FDRL).
16. ROOSEVELT, supra note 7, at lxiii; Leuchtenburg, “Packing” Plan, supra note
10, at 73; LEUCHTENBURG, Origins, supra note 6, at 386; Memorandum on Policy, supra
note 10, at 5; BAKER, supra note 3, at 131.
17. ROOSEVELT, supra note 7, at lxiv; LEUCHTENBURG, Origins, supra note 6, at
387; Memorandum on Policy, supra note 10, at 13 (concluding that enlargement of the
Court by statute “is the only safe, simple, and reasonably prompt way out of the
dilemma”).
!!!CUSHMAN-291-COURT-PACKING AND COMPROMISE.DOC (DO NOT DELETE) 8/9/2013 2:15 PM

2013] COURT-PACKING AND COMPROMISE 5

justices, even if they opposed expanding the Court’s membership

to fifteen. Democratic Senator Key Pittman wrote to Attorney
General Homer Cummings proposing an eleven-member Court
just three days after the President surprised the congressional
18
leadership with his own proposal. On February 20 a delegation
of congressional leaders headed by Vice-President John Nance
Garner, Senate Majority Leader Joe Robinson, and Senate
Judiciary Committee Chairman Henry Fountain Ashurst urged
the President to agree to a compromise providing for the
addition of two or three additional justices. Roosevelt responded
19
by “laugh[ing] in their faces.”
This posture continued well into the spring. After the
Supreme Court had upheld the National Labor Relations Act on
April 12, Robinson took presidential advisor Joe Keenan aside
and urged the Administration to declare victory and liquidate
the Court plan. “[I]f the president wants to compromise,”
Robinson told Keenan, “I can get him a couple of extra justices
20
tomorrow.” Yet when this suggestion was conveyed to
21
Roosevelt, he again rejected it. A few weeks later, while the
President was on a two-week fishing trip in the Gulf of Mexico,
Robinson, Pat Harrison, and Alben Barkley invited James
Roosevelt to lunch to break the news that there were not enough
votes in the Senate to pass his father’s bill. The Senate leaders
urged that the President permit them to work out the best deal
possible, and advisors such as Tommy Corcoran hoped that FDR
would now suspend his pursuit of the Court bill so that Congress
might attend to other pressing matters. Yet neither James
Roosevelt nor Jim Farley was successful in persuading the
President to accept a compromise, and FDR confirmed his
resolve to his cabinet and congressional leaders upon returning
22
to Washington May 14. Just days later, Senator Burton

18. Letter from Key Pittman to Homer Cummings (Feb. 8, 1937) (unpublished
manuscript) (on file with the University of Virginia).
19. ALSOP & CATLEDGE, supra note 3, at 78; SOLOMON, supra note 4, at 126–27.
Roosevelt also rejected Senator Pat McCarran’s proposal for an increase of two justices.
ALSOP & CATLEDGE, supra note 3, at 196. The President also received such suggestions
in correspondence from individual citizens. See John P. Byrne to FDR, Apr. 18, 1933,
FDRL OF 41-A, quoted in LEUCHTENBURG, Origins, supra note 6, at 350 (proposing a
Court of twelve justices).
20. ALSOP & CATLEDGE, supra note 3, at 152–53; BAKER, supra note 3, at 182;
MCKENNA, supra note 2, at 443; SOLOMON, supra note 4, at 184; ROBERT SHOGAN,
BACKLASH; THE KILLING OF THE NEW DEAL 198 (2006).
21. ALSOP & CATLEDGE, supra note 3, at 153–56; BAKER, supra note 3, at 182;
MCKENNA, supra note 2, at 443: SOLOMON, supra note 4, at 184; SHOGAN, supra note 20,
at 198; SHESOL, supra note 3, at 435–36.
22. BAKER, supra note 3, at 190, 198; MCKENNA, supra note 2, at 450–52;
!!!CUSHMAN-291-COURT-PACKING AND COMPROMISE.DOC (DO NOT DELETE) 8/9/2013 2:15 PM

6 CONSTITUTIONAL COMMENTARY [Vol. 29:1

Wheeler informed the White House that Justice Willis Van

Devanter would announce his retirement from the Court on
May 18, and hinted that Justice George Sutherland also planned
to retire soon. The time was ripe, Wheeler urged, for com-
promise on the Court bill. And still, the President refused to
23
budge. Even after the Court upheld the Social Security Act on
24
May 24, Roosevelt’s press secretary Stephen Early told Scripps-
Howard newspaper columnist Raymond Clapper that the
25
president intended to press forward with his original proposal.
Not until June 3 did Roosevelt finally authorize Robinson
26
to seek the best compromise that could be salvaged. By then,
however, many were already saying that the time for
27
compromise had come and gone. Even two weeks earlier, a
private meeting of Senate leaders of the opposition to the
President’s plan had revealed that they would no longer brook
28
any talk of compromise. On May 18, the Senate Judiciary
Committee voted to disapprove the Court-packing bill by a
margin of 10-8. Before doing so they discussed and rejected six
compromise proposals, one of which would have increased the
29
Court’s membership to eleven. That evening Senator Wheeler
told reporters, “‘they are begging for a compromise, but they
30
ought to know it’s too late to talk of compromise.’” Roosevelt
speech writer Sam Rosenman later wrote of the Court-packing
plan, “The thing that killed it was Roosevelt’s refusal to
31
compromise, when there was still time to compromise.” As

SOLOMON, supra note 4, at 190–91; SHOGAN, supra note 20, at 199; SHESOL, supra note
3, at 443.
23. MCKENNA, supra note 2, at 457.
24. Helvering v. Davis, 301 U.S. 619 (1937); Steward Machine Co. v. Davis, 301
U.S. 548 (1937).
25. Leuchtenburg, “Packing” Plan, supra note 10, at 98.
26. ALSOP & CATLEDGE, supra note 3, at 215–16; BAKER, supra note 3, at 231-33;
PATTERSON, supra note 4, 122; MacColl, supra note 2, at 438-39.
27. PATTERSON, supra note 4, at 122. “When it began to appear that he would not
get his way, the President sent Thomas G. Corcoran (Tommy the Cork) to ask me if I
would sound out some of my friends in the Senate as to whether it would be possible to
increase the Court by two members. I had no sympathy with the plan to pack the Court,
but went up to the Hill and saw some of my friends. They made it clear to me that, had
the President in the beginning asked for only two additional members for the Supreme
Court, he probably could have got them, but as the score then stood, with everyone
”
embittered, the Senate would not authorize any increase. JESSE H. JONES WITH
EDWARD ANGLY, FIFTY BILLION DOLLARS: MY THIRTEEN YEARS WITH THE RFC 263
(1951).
28. SOLOMON, supra note 4, at 192–93. See also MCKENNA, supra note 2, at 475;
SHESOL, supra note 3, at 463–64.
29. MCKENNA, supra note 2, at 460–61; SOLOMON, supra note 4, at 198.
30. SOLOMON, supra note 4, at 199.
31. SOLOMON, supra note 4, at 257 (quoting Samuel I Rosenman, The
!!!CUSHMAN-291-COURT-PACKING AND COMPROMISE.DOC (DO NOT DELETE) 8/9/2013 2:15 PM

2013] COURT-PACKING AND COMPROMISE 7

Tommy Corcoran confided to Harry Hopkins in 1939, “[w]e

missed a compromise when that could have been
32
accomplished.” Wheeler later told Homer Cummings, while
cooling off in the club house after a round of golf at Burning
Tree, that “the Court fight might have been settled half a dozen
33
times during its progress.” Cummings himself recognized that
“[i]t was probably a mistake not to have worked out in early
34
season a substantial compromise.” Had Roosevelt “shown
moderation from the beginning,” concludes Professor Patterson,
“he might have succeeded in obtaining some sort of moderate
reform; as it was, his tenacity cost him many supporters and
35
destroyed his chances for any reform at all.” “The plan itself,
his failure to consult his leaders, and his refusal to compromise
36
marked the worst congressional bungling of his career.”
Why was the President so resistant to compromise? First, as
a number of scholars have noted, he believed that he had the
support of the voters. Though a series of public opinion polls
indicated that the Court-packing plan never enjoyed the support
37
of a majority of respondents, Roosevelt persistently maintained
38
that “the people are with me.” Brimming with confidence—
some have called it “hubris”—in the wake of his great electoral
39
victory, FDR ignored signs that his bill was in trouble.
Rosenman attributed the loss of the Court-packing fight in part
to the “mistakes” of “overconfidence” and “stubbornness” on

Reminiscences of Samuel I. Rosenman 11 (July 18, 1958), (unpublished manuscript) (on

file with the Columbia University Oral History Research Office)).
32. ROBERT E. SHERWOOD, ROOSEVELT AND HOPKINS: AN INTIMATE HISTORY
89–90 (1948).
33. Diary of Homer Cummings (June 12, 1938) (unpublished manuscript) (on file
with the University of Virginia). See also Court Plan Dead, But Not Buried, LITERARY
DIGEST, May 29, 1937 (“The opposition could point to Roosevelt’s persistent refusal
time after time to accept a substitute program for his own”).
34. Diary of Homer Cummings (August 1, 1937) (unpublished manuscript) (on file
with the University of Virginia). Burt Solomon reports that in July of 1937 Homer
Cummings wrote in his diary, “We could have had an eleven-judge Court with all the rest
of the bill, but we sinned away the day of grace.” SOLOMON, supra note 4, at 257. This is
a wonderful quotation; unfortunately it does not appear in the passage of the Cummings
diary to which Mr. Solomon attributes it, viz., July 25, 1937, see SOLOMON, supra note 4,
at 317. Nor have I been able to locate the quotation in the Cummings Diaries for 1937,
1938, 1939, 1940, nor 1941.
35. PATTERSON, supra note 4, at 122.
36. Id. at 125.
37. See Barry Cushman, Mr. Dooley and Mr. Gallup: Public Opinion and
Constitutional Change in the 1930s, 50 BUFF. L. REV. 7, 67–71 (2002).
38. See, e.g., ALSOP & CATLEDGE, supra note 3, at 74, 77; PATTERSON, supra note
4, at 122; MCKENNA, supra note 2, at 324; SOLOMON, supra note 4, at 184.
39. ALSOP & CATLEDGE, supra note 3, at 154, 197; MCKENNA, supra note 2, at
324, 438; SHOGAN, supra note 20, at 238; SHESOL, supra note 3, at 417, 508–09.
!!!CUSHMAN-291-COURT-PACKING AND COMPROMISE.DOC (DO NOT DELETE) 8/9/2013 2:15 PM

8 CONSTITUTIONAL COMMENTARY [Vol. 29:1

40
the part of Roosevelt, while Harry Truman chalked it up to
“that growing ego of his, which notably wasn’t too minuscule to
41
start with.”
The President was not alone in this overconfidence. It was
shared and reinforced by many of his advisors. At various stages
of the fight Cummings, Corcoran, Benjamin Cohen, Joe Keenan,
Robert Jackson, and Donald Richberg all counseled against
compromise. Brushing off warnings from the Senate leadership,
they insisted that victory was at hand and that compromise
42
would be tantamount to surrender. As Robert Shogan argues,
the President’s “strongest supporters . . . would have viewed any
43
giving of ground as a betrayal.” The Nation reflected the view
of many New Dealers when it insisted that the Court plan was
“the key to the whole Administration program of Mr.
Roosevelt’s second term.” Once the opposition had “forced Mr.
Roosevelt to retreat on the Court bill,” they would “harry the
Administration forces until they have surrendered all along the
44
line.”
In 1941, Roosevelt maintained that “[t]ime and again during
the fight, I made it clear that my chief concern was with the
objective—namely, a modernized judiciary that would look at
modern problems through modern glasses. The exact kind of
legislative method to accomplish that objective was not
important. I was willing to accept any method proposed which
would accomplish that ultimate objective—constitutionally and
quickly. I received, however, no reasonable guarantee or
assurance that some other definite method would obtain
Congressional approval. Rumors of compromise were plenty;
but never a definite agreement or offer. . . . And the best
legislative advice which I could get from the Congressional
leaders was that my own suggestion would ultimately be
approved. That is the reason why no so-called compromise was
ever submitted by me to the Congress; that is why it was

40. SAMUEL I. ROSENMAN, WORKING WITH ROOSEVELT 161 (1952).

41. Doris Kearns Goodwin, Franklin D. Roosevelt, in CHARACTER ABOVE ALL:
TEN PRESIDENTS FROM FDR TO GEORGE BUSH 13, 35 (Robert A. Wilson ed., 1995).
42. ALSOP & CATLEDGE, supra note 3, at 113, 159–60, 214; MCKENNA, supra note
2, at 443, 464; SOLOMON, supra note 4, at 185.
43. SHOGAN, supra note 20, at 237.
44. “[I]f he should give up court reform he would be giving up . . . the rest of his
program as well. He would have to fight every inch of the way for the Black-Connery
labor-standards bill, for Senator Norris’s power and regional planning bill, for the ever-
normal granary measure and the farm tenancy measure.” Death and Politics, THE
NATION, July 24, 1937, at 88–89. See also BAKER, supra note 3, at 184.
!!!CUSHMAN-291-COURT-PACKING AND COMPROMISE.DOC (DO NOT DELETE) 8/9/2013 2:15 PM

2013] COURT-PACKING AND COMPROMISE 9

necessary to persist in the plan originally proposed. Had any

satisfactory compromise been definitely offered which would
have been effective in attaining the objective, it would have been
45
accepted by me.”
On the surface, these contentions are not easily reconciled
with the report, mentioned above, that a delegation of
Democratic leaders unsuccessfully proposed a compromise of
46
two or three additional justices to Roosevelt on February 20.
Nor do they seem to square with the fact that in April Senator
Hatch proposed and the White House rejected a compromise
bill that would have provided for the appointment of an
additional justice for each of the four sitting justices who had
reached the age of seventy-five without retiring, with
47
appointments limited to one per year. And as mentioned
above, after the Court’s decisions upholding the National Labor
Relations Act on April 12, Robinson told Joe Keenan that
“[t]his bill’s raising hell in the Senate. Now it’s going to be worse
than ever, but if the President wants to compromise I can get
him a couple of extra justices tomorrow. What he ought to do is
say he’s won, which he has, agree to compromise to make the
thing sure, and wind the whole business up.” Yet once again
48
FDR would hear nothing of the sort. For these reasons,
Roosevelt’s recollection of the prospects for compromise has
49
been characterized as “somewhat disingenuous,” “open to
50
question,” and having little “basis in fact.”
To be sure, Roosevelt was given ample reason to doubt that
his bill ultimately would be approved, and proposals for a
compromise that would have involved the addition of fewer than
six judges appear to have been more definite than the
President’s account suggests. But one can readily understand
why FDR asserted that none of those compromise proposals
would have been effective in attaining his objective of “a
modernized judiciary that would look at modern problems
through modern glasses.” For Roosevelt and his advisors

45. ROOSEVELT, supra note 7, at lxv–lxvi.

46. ALSOP & CATLEDGE, supra note 3, at 78; SOLOMON, supra note 4, at 126–27.
47. ALSOP & CATLEDGE, supra note 3, at 197; MCKENNA, supra note 2, at 447.
48. ALSOP & CATLEDGE, supra note 3, at 152–56; BAKER, supra note 3, at 182;
MCKENNA, supra note 2, at 443; SOLOMON, supra note 4, at 184; SHOGAN, supra note 20,
at 198; SHESOL, supra note 3, at 435–36.
49. SHOGAN, supra note 20, at 237.
50. MacColl, supra note 2, at 419–20; MCKENNA, supra note 2, at 438–39.
!!!CUSHMAN-291-COURT-PACKING AND COMPROMISE.DOC (DO NOT DELETE) 8/9/2013 2:15 PM

10 CONSTITUTIONAL COMMENTARY [Vol. 29:1

believed that there were only three current members of the

51
Court who fit such a description, and six who did not.
Though they had not always sided with the Administration,
Brandeis, Stone, and Cardozo were the Court’s most reliable
supporters of the New Deal. Even they had voted to invalidate
the National Industrial Recovery Act’s (NIRA) Live Poultry
52
Code, to strike down the first Frazier-Lemke Farm Debt Relief
53
Act, and to deny Roosevelt the power to remove a
“contentious” member of the Federal Communications
54
Commission. Only Cardozo had dissented from the majority
opinion declaring the NIRA’s “Hot Oil” program uncon-
55
stitutional on nondelegation grounds. But they had voted to
uphold the Administration’s monetary policy in the Gold Clause
56 57
Cases, the Railroad Retirement Act, the first Agricultural
58
Adjustment Act (AAA), the Tennessee Valley Authority
59 60
(TVA), the Guffey Coal Act, and New York’s minimum wage
61
statute. A Justice Department memorandum prepared after the
announcement of Justice Van Devanter’s retirement in mid-May
62
therefore classed each of these justices as “liberal.”
By contrast, the Four Horsemen—Justices Van Devanter,
McReynolds, Sutherland, and Butler—“were such staunch
conservatives that almost every time Roosevelt’s Attorney
General Homer Cummings went into court, he knew he had four
63
votes against him.” To be sure, they had not always opposed
the Administration. With the exception of McReynolds, they
64
had voted to uphold the TVA. In the spring of 1937, they would
65
all vote to uphold the Railway Labor Act and the application of
the National Labor Relations Act (NLRA) to an interstate bus

51. Diary of Homer Cummings (Dec. 26, 1936) (unpublished manuscript) (on file
with the University of Virginia).
52. Schechter Poultry Co. v. United States, 295 U.S. 495 (1935).
53. Louisville Joint Stock Land Bank v. Radford, 295 U.S. 555 (1935).
54. Humphrey’s Executor v. United States, 295 U.S. 602 (1935).
55. Panama Refining Co. v. Ryan, 293 U.S. 388 (1935).
56. Perry v. United States, 294 U.S. 330 (1935); Nortz v. United States, 294 U.S. 317
(1935); United States v. Banker’s Trust Co., 294 U.S. 240 (1935).
57. Railroad Retirement Board v. Alton, 295 U.S. 330 (1935).
58. United States v. Butler, 297 U.S. 1 (1936).
59. Ashwander v. Tennessee Valley Authority, 297 U.S. 288 (1936).
60. Carter v. Carter Coal Co., 298 U.S. 238 (1936).
61. Morehead v. New York ex rel. Tipaldo, 298 U.S. 587 (1936).
62. Memorandum on the Features of the Proposed Plan (unpublished manuscript)
(on file with the University of Virginia).
63. Leuchtenburg, “Packing” Plan, supra note 10, at 69–70.
64. Ashwander v. Tennessee Valley Authority, 297 U.S. 288 (1936).
65. Virginian Railway Co. v. Federation, 300 U.S. 515 (1937).
!!!CUSHMAN-291-COURT-PACKING AND COMPROMISE.DOC (DO NOT DELETE) 8/9/2013 2:15 PM

2013] COURT-PACKING AND COMPROMISE 11

66
company. And in May, Justices Van Devanter and Sutherland
would vote to uphold the old-age pension provisions of the
67
Social Security Act. But in every other major case, the Four
68
Horsemen had voted against the New Deal.
This meant that if either Chief Justice Hughes or Justice
Roberts joined the Four Horsemen, FDR’s program might suffer
defeat by a vote of 5–4 or 6–3. In the Administration’s view, this
had happened with unsettling frequency. True, these justices had
supported the Administration in constitutional tests of the
69 70
monetary program and the TVA. But both men had joined
71
unanimous or near-unanimous opinions invalidating the NIRA
72
and the Frazier-Lemke Act. Moreover, their votes to invalidate
73 74
the AAA and provisions of the Guffey Coal Act had proved
decisive, and Justice Roberts had supplied the fifth and deciding
75
vote to strike down the Railroad Retirement Act and New
76
York’s minimum wage law. Hughes and Roberts simply were
not sufficiently reliable. For this reason, even after the 1937
77
decisions upholding Washington State’s minimum wage law,
78 79
the NLRA, and the Social Security Act, the aforementioned
Justice Department memo classed them with the Four
80
Horsemen as “conservative.”

66. Washington, Virginia, & Maryland Coach Co. v. NLRB, 301 U.S. 142 (1937).
67. Helvering v. Davis, 301 U.S. 619 (1937).
68. Carter v. Carter Coal Co., 298 U.S. 238 (1936); United States v. Butler, 297 U.S.
1 (1936); Humphrey’s Executor v. United States, 295 U.S. 602 (1935); Louisville Joint
Stock Land Bank v. Radford, 295 U.S. 555 (1935); Schechter Poultry Co. v. United
States, 295 U.S. 495 (1935); Railroad Retirement Board v. Alton, 295 U.S. 330 (1935);
Perry v. United States, 294 U.S. 330 (1935); Nortz v. United States, 294 U.S. 317 (1935);
United States v. Banker’s Trust Co., 294 U.S. 240 (1935); Panama Refining Co. v. Ryan,
293 U.S. 388 (1935). See also Morehead v. New York ex rel. Tipaldo, 298 U.S. 587 (1936);
Nebbia v. New York, 291 U.S. 502, 539 (1934) (McReynolds, Van Devanter, Sutherland,
and Butler, JJ., dissenting); Home Bldg. & Loan Assn. v. Blaisdell, 290 U.S. 398, 448
(1934) (Sutherland, Van Devanter, McReynolds, and Butler, JJ., dissenting).
69. Perry v. United States, 294 U.S. 330 (1935); Nortz v. United States, 294 U.S. 317
(1935); United States v. Banker’s Trust Co., 294 U.S. 240 (1935).
70. Ashwander v. Tennessee Valley Authority, 297 U.S. 288 (1936).
71. Schechter Poultry Co. v. United States, 295 U.S. 495 (1935); Panama Refining
Co. v. Ryan, 293 U.S. 388 (1935).
72. Louisville Joint Stock Land Bank v. Radford, 295 U.S. 555 (1935).
73. United States v. Butler, 297 U.S. 1 (1936).
74. Carter v. Carter Coal Co., 298 U.S. 238 (1936).
75. Railroad Retirement Board v. Alton, 295 U.S. 330 (1935).
76. Morehead v. New York ex rel. Tipaldo, 298 U.S. 587 (1936).
77. West Coast Hotel v. Parrish, 300 U.S. 379 (1937).
78. Washington, Virginia, & Maryland Coach Co. v. NLRB, 301 U.S. 142 (1937);
Associated Press v. NLRB, 301 U.S. 103 (1937); Labor Board Cases, 301 U.S. 1 (1937).
79. Helvering v. Davis, 301 U.S. 619 (1937); Steward Machine Co. v. Davis, 301
U.S. 548 (1937).
80. Memorandum on the Features of the Proposed Plan, supra note 62.
!!!CUSHMAN-291-COURT-PACKING AND COMPROMISE.DOC (DO NOT DELETE) 8/9/2013 2:15 PM

12 CONSTITUTIONAL COMMENTARY [Vol. 29:1

The Administration thus believed that it was confronted

with an unacceptably high probability of six votes opposing the
New Deal, with only three in support. A compromise allowing
the President to appoint two additional justices would do
nothing to ameliorate this, as what had been 6–3 losses would
now be negative votes of 6-5. Even a three-justice compromise
was not sufficient to solve the problem. Three additional
Roosevelt appointees would deadlock the vote at 6–6, but such
an evenly divided Court might well affirm adverse decisions
from lower federal courts dominated by more conservative
81
appointees. More justices would be necessary to ensure the
safety of the New Deal.
This view persisted even after Hughes and Roberts joined
majorities upholding Washington State’s minimum wage law on
March 29 and the application of the National Labor Relations
Act to manufacturing concerns on April 12. An unidentified
Senator captured the views of several colleagues who seemed to
be cooling toward the President’s proposal: “You don’t run so
fast for a train once you have caught up with it. . . . The only real
argument left is this: Is Judge Roberts going to stay where he
82
is?” But for Roosevelt and Cummings, the fact that this
83
question remained open was dispositive. A Justice Department

81. See, e.g., PETER H. IRONS, THE NEW DEAL LAWYERS 13 (1982) (“in the period
before 1937 (and for another decade, in fact) the federal bench was dominated by
conservative Republicans . . . [who] shared . . . a 19th-century outlook on law and
economics”).
82. SOLOMON, supra note 4, at 187 (quoting Albert L. Warner, Roosevelt Presses
Fight for Court Plan, Delays Labor Bill for Showdown, NEW YORK HERALD TRIBUNE,
Apr. 14, 1937).
83. See Memorandum on the Wake of West Coast Hotel v. Parrish, Plan 4-5
(unpublished manuscript) (on file with the University of Virginia):
Thus after twenty years of unabated struggle, minimum wage legislation is for
the first time sustained by the Supreme Court by a bare majority vote. Four
members of the Court still insist upon putting an interpretation upon the words
“due process” and “equal protection of the law,” with which not one lawyer in a
hundred and not one citizen in a thousand would agree. Only by the vacillating
vote of a single justice was the constitutional right of the state legislatures
reinstated after what seemed to be a hopeless struggle—to paraphrase Justice
Holmes—to educate the Justices “in the obvious.” Four out of the nine Justices
have dramatically revealed that they still entertain a view of the Constitution
strikingly at variance with that of Chief Justice Marshall and the Founding
Fathers because the view of the four dissenting judges would obviously make it
impossible for the Constitution “to endure for ages to come and to be adaptable
to the various crises of human events.” Unless the present personnel of the
Court is enlarged, every new and debatable constitutional issue will come
before the Court with four Justices definitely hostile to any theory which would
permit the Constitution to be adapted to the needs of the time. If there should
be any difference among any one of the five Justices whose minds are at all
open regarding the applicability of the Constitution to new problems—the
efforts of the legislatures, state or federal, to meet those problems will be
!!!CUSHMAN-291-COURT-PACKING AND COMPROMISE.DOC (DO NOT DELETE) 8/9/2013 2:15 PM

2013] COURT-PACKING AND COMPROMISE 13

memo warned that Hughes and Roberts simply had capitulated

to “the pressure of shotgun liberalism,” and worried that “[a]fter
the passage of the Supreme Court statute, Hughes and Roberts
will have no further incentive for shot-gun liberalism and are far
84
more likely to be actuated by impulses of revenge.” In a press
release issued April 14, Cummings cautioned that,
Gratifying as these recent decisions are it must be
remembered that they are five-to-four decisions, and it is
impossible to predict what will be the attitude of the Court in
connection with the whole range of necessary legislation
dealing with child labor, sweat shops, minimum wages,
maximum hours, old age benefits, and other social matters.
All these have yet to run the gauntlet of judicial
interpretation. The loss of one vote in the recent cases would
have made the Constitution mean something quite different
from what it appears to mean now, and four members of the
Court still stand as a battalion of death against all major social
legislation, state and national.
It is not a wholesome situation when an administration,
under a mandate to carry out a progressive program, must
face a court of nine, with four votes lost to it in advance. The
85
margin is too narrow and the risk is too great.
At about the same time, Senator Joseph O’Mahoney of
Wyoming and Harvard economist William Z. Ripley asked the
President why he would not compromise now that he had
secured a liberal majority on the Court. The President
responded that “a five-to-four majority was not enough for him.
He said he wanted a Court that would ‘co-operate’ with the
White House. He needed six new justices who would be friendly
and approachable, men with whom he could confer, as man to
man, on his great plans for social and economic reform and
86
experiment.” Presidential advisors such as Tommy Corcoran,

nullified. It is intolerable that in this period of social and economic change the
adaptability of the Constitution and the continuity of legal growth should rest
upon the vacillating judgment and human frailty of a single Justice.
84. Memorandum on Features of the Proposed Plan, supra note 62.
85. Box 204, Cummings MSS. This view is reiterated in Cummings’s diary entry of
May 4. Diary of Homer Cummings (May 4, 1937) (unpublished manuscript) (on file with
the University of Virginia).
86. ALSOP & CATLEDGE, supra note 3, at 154–55. See also id. at 161. It does
appear, however, that Roosevelt was already beginning to think about alternatives to his
own plan. Homer Cummings reports that at a cabinet meeting on April 9—three days
before the Wagner Act decisions were handed down—the President was “keen to have
his own plan go through, but he would not object to a constitutional amendment dealing
with the membership of the Court. I think at present he inclines to a constitutional
amendment limiting judicial tenure to nine years instead of for life.” Diary of Homer
!!!CUSHMAN-291-COURT-PACKING AND COMPROMISE.DOC (DO NOT DELETE) 8/9/2013 2:15 PM

14 CONSTITUTIONAL COMMENTARY [Vol. 29:1

Ben Cohen, and Robert Jackson counseled FDR against

accepting Robinson’s offer of a two-justice compromise. An
eleven-member Court, they cautioned, would not produce a
“dependable” bench. As Jackson put it to Roosevelt, “[i]f you’re
87
going to pack a court at all you’ve got to really pack it.”
Even after the Court had sustained the Social Security Act
on May 24, Roosevelt press secretary Steve Early told Scripps-
Howard columnist Raymond Clapper the president would
continue the Court fight because he didn’t “know how long
Hughes can keep Roberts liberal or how long Hughes will stay
88
so.” A White House memorandum concluded that the
President had secured “the liberalization of the interpretation of
the Constitution,” but had not yet attained “insurance of the
89
continuity of that liberalism.” The President and his advisors
were still counting Hughes and Roberts as conservatives.
But if the addition of two or three more justices to the
Court would not solve the problem, why did the President insist
upon six? Would not the addition of four bring the
90
Administration’s margin from 6–3 against to 7–6 in favor? And
would not the addition of five more justices increase that margin
to 8–6?
Roosevelt recognized that even such larger additions would
not provide him with the assurance he desired. More than two

Cummings (Apr. 9, 1937) (on file with the University of Virginia). Indeed, by April 19, at
Cummings’ request, Solicitor General Stanley Reed had prepared the text of four
possible constitutional amendments limiting judicial tenure: One that would require all
sitting and future judges and justices to retire at 70; one that would terminate service at
70, but only for judges and justices appointed after ratification; one that would limit the
tenure of all post-ratification appointees to nine years; and one, more complicated,
providing for staggered nine year terms and implicating sitting judges and justices.
Memorandum from the Solicitor General to the Attorney General (Apr. 19, 1937)
(unpublished manuscript) (on file with the University of Virginia). This may have been at
least in part a response to a report from Joe Keenan that the President’s bill no longer
enjoyed the backing of a key member of the Senate Judiciary Committee, Carl Hatch of
New Mexico. See Memorandum by Joseph B. Keenan for the Attorney General, on the
Court Reorganization Bill (Apr. 1, 1937) (unpublished manuscript) (on file with the
University of Virginia), at the bottom of which appears the following handwritten note:
“We seem now to be losing the support of Senator Hatch. Indeed unless we can change
him he is definitely against us. JBK.”
87. ALSOP & CATLEDGE, supra note 3, at 159, 214; MCKENNA, supra note 2, at
443; SOLOMON, supra note 4, at 185.
88. Leuchtenburg, “Packing” Plan, supra note 10, at 98 (quoting Raymond Clapper,
Diary (May 24, 1937) (unpublished manuscript).
89. MacColl, supra note 2, at 438; Leuchtenburg, “Packing” Plan, supra note 10, at
98, n. 80.
90. Such a proposal was also suggested to the President in correspondence from
citizens. See LEUCHTENBURG, Origins, supra note 6, at 367, 376.
!!!CUSHMAN-291-COURT-PACKING AND COMPROMISE.DOC (DO NOT DELETE) 8/9/2013 2:15 PM

2013] COURT-PACKING AND COMPROMISE 15

years earlier the President had promised the first available seat
to Senate Majority Leader Joe Robinson of Arkansas. The
pledge, which was tendered at Robinson’s request, had been
made through Postmaster General Jim Farley as a reward for the
majority leader’s loyal assistance in whipping New Deal
91
legislation through the Congress. Yet as faithful and effective as
Robinson had been as a congressional lieutenant, Roosevelt and
the liberals inside and outside of his Administration feared that
Robinson would vote as a conservative once he had been
92
invested with life tenure on the Court. He had opposed the
government construction of an electric power plant at Muscle
Shoals in Alabama in the 1920s; he had been troubled by the
NIRA’s codes of fair competition; and he worried that the
current deficit spending would “bankrupt the country and tend
93
to centralize all power in the national government.”
Many New Dealers thus saw Robinson as “one who served
the cause out of duty and party loyalty but in his heart and mind
94
was not really one of them.” In an editorial entitled, “Robinson
Will Not Do!,” the Nation reminded its readers that “[a]
Supreme Court Justice is not responsible to the president who
appoints him.” Robinson was “a conservative Southern
provincial Democrat.” His “closest bonds” were “with the
Arkansas planter,” and Harvey Couch, “the utilities magnate of
the region,” was “his fishing mate.” “That a man who so
thoroughly represents the ruling class in Arkansas should be
elevated to the Supreme Court at this juncture,” the editors
95
warned, “is ironical and dangerous.”
Roosevelt’s promise to Robinson meant that the President’s
first appointment under any compromise plan would bring the
number of conservatives on the Court to seven. A two-justice
compromise thus would bring the margin from 6-3 to 7-4. A
three justice compromise would only narrow the gap to 7-5. A

91. Good Soldier, TIME, July 15, 1935; Joseph Alsop, Jr. & Turner Catledge, Joe
Robinson, The New Deal’s Old Reliable, THE SATURDAY EVENING POST, September 26,
1936; ALSOP & CATLEDGE, supra note 3, at 156–58; Leuchtenburg, “Packing” Plan,
supra note 10, at 100; SHOGAN, supra note 10, at 200; SOLOMON, supra note 4, at 185–86;
SHESOL, supra note 3, at 309.
92. ALSOP & CATLEDGE, supra note 3, at 211; Leuchtenburg, “Packing” Plan,
supra note 10, at 100; MCKENNA, supra note 2, at 470; SOLOMON, supra note 4, at 186,
201. How Robinson actually would have voted had he become a justice was and is of
course only a matter of conjecture.
93. SHOGAN, supra note 20, at 200–02. See also ALSOP & CATLEDGE, supra note 3,
at 157–58.
94. SHOGAN, supra note 20, at 202.
95. Robinson Will Not Do!, THE NATION, May 29, 1937, at 607–08.
!!!CUSHMAN-291-COURT-PACKING AND COMPROMISE.DOC (DO NOT DELETE) 8/9/2013 2:15 PM

16 CONSTITUTIONAL COMMENTARY [Vol. 29:1

four-justice compromise would still leave Roosevelt short of a

working majority at 7-6. And even a five-justice deal would
produce only a 7-7 deadlock, which might well affirm an adverse
lower-court decision by an equally divided bench. Six justices
was the absolute minimum number of appointments that FDR
required to insure a dependable Court.
The President’s bill would have provided for the
appointment of an additional justice for each sitting justice who
had not retired within six months following his seventieth
birthday. Justice McReynolds had proposed such a measure with
respect to lower-court judges when he had been Attorney
General back in 1913, and it is often observed that Roosevelt
and Cummings took great delight in hoisting the curmudgeonly
96
justice by his own petard. But FDR had an additional reason to
be delighted by McReynolds’ formula: it provided him with
precisely the number of appointments that he needed. Setting
the age threshold higher would have frustrated this purpose.
An undated Justice Department memorandum listing the
birthdays and ages of the justices as of January 1, 1937,
illustrates the point. At the bottom of the page appear
handwritten notes observing the ages of Brandeis (80) and Van
Devanter (77), and the dates upon which three other justices
would reach the age of seventy-five: McReynolds (February 3,
1937); Sutherland (March 25, 1937); and Hughes (April 11,
1937). The handwritten notes do not mention any of the other
four sitting justices. These notes suggest that Cummings and the
President may have considered the possibility of a bill that would
have authorized FDR to appoint an additional justice for each
sitting justice who had reached the age of seventy-five without
retiring. There were three such justices by the time that
Roosevelt announced his plan on February 5, and such a bill
would have given the President a total of five additional
appointments by April 11, 1937. But that was not enough. The
age had to be lower. Stone, Roberts, and Cardozo each was in
his sixties, but Justice Butler, who was born on March 17, 1866,
was now a little more than six months beyond his seventieth
birthday. The appeal of McReynolds’ formulation was that it

96. ALSOP & CATLEDGE, supra note 3, at 33–36; LEUCHTENBURG, Origins, supra
note 6, at 391–92, 394; Leuchtenburg, “Packing” Plan, supra note 10, at 74. See also Diary
of Homor Cummings (Jan. 17, 1937) (unpublished manuscript) (on file with the
University of Virginia).
!!!CUSHMAN-291-COURT-PACKING AND COMPROMISE.DOC (DO NOT DELETE) 8/9/2013 2:15 PM

2013] COURT-PACKING AND COMPROMISE 17

swept in just enough justices to assure Roosevelt of a working

97
majority.
The promise to Robinson was thus the fly in the ointment of
any potential compromise on the number of justices. There was,
however, another potential avenue to secure a liberal majority
on the Court: inducing the conservative justices to retire. It was
widely rumored that both Justice Van Devanter and Justice
Sutherland wished to leave the bench. Van Devanter had served
on the Court since 1911, and at the age of seventy-seven was
ready to step down. The seventy-four year old Sutherland’s high
blood pressure required that he write most of his opinions in
98
bed, and he was similarly anxious to lighten his burden. Yet the
state of the judicial pension system at the time did not protect
justices who had resigned from the Supreme Court from
reductions in their stipends. Indeed, shortly after Justice Holmes
had retired in 1932, the Economy Bill of 1933 had slashed his
99
pension in half.
In his capacity as Chair of the House Judiciary Committee,
Hatton Sumners had sought to remove this disincentive to
judicial retirement by introducing a bill that would allow
Supreme Court justices to retire at full pay. The House had
100
perversely rejected the bill in 1935, but after the President had
introduced his Court-packing bill, Sumners’ proposal quickly
sailed to passage in both the House and the Senate, and FDR
101
signed it into law March 1. In February, while his proposal was
working its way to the President’s desk, Sumners urged
Roosevelt to accept the judicial retirement bill as an alternative
to the Court-packing plan. Once it was enacted, Sumners
represented, he could persuade at least two justices—
presumably Van Devanter and Sutherland—to retire. But
though the President did not oppose Sumners’ bill, he rejected
the suggestion that he abandon his own proposal. As James
Roosevelt wrote of the proposal in his diary, “It wouldn’t really

97. Memorandum on the Ages of Federal Judges (unpublished manuscript) (on file
with the University of Virginia).
98. 2 MERLO J. PUSEY, CHARLES EVANS HUGHES 302 (1963); THE
AUTOBIOGRAPHICAL NOTES OF CHARLES EVANS HUGHES 302 (David J. Danelski &
Joseph S. Tulchin eds., 1973); MacColl, supra note 2, at 146–47, 430; Paul A. Freund,
Charles Evans Hughes as Chief Justice, 81 HARV. L. REV. 4, 43 (1967).
99. BAKER, supra note 3, at 67–68.
100. WILLIAM F. SWINDLER, COURT AND CONSTITUTION IN THE TWENTIETH
CENTURY: THE NEW LEGALITY 38 (1970).
101. ALSOP & CATLEDGE, supra note 3, at 77; SWINDLER, supra note 100, at 69; Act
of March 1, 1937, ch. 21, 50 Stat. 24.
!!!CUSHMAN-291-COURT-PACKING AND COMPROMISE.DOC (DO NOT DELETE) 8/9/2013 2:15 PM

18 CONSTITUTIONAL COMMENTARY [Vol. 29:1

102
cure the situation even if [Sumners] succeeds. . . .” For even if
the pension bill were to induce these two conservative justices to
retire, Roosevelt would have to appoint Robinson to one of their
seats. The appointment of a liberal justice to the second vacancy
would still leave the Court in the control of a conservative 5-4
majority.
The enactment of the pension bill did induce the retirement
of Justice Van Devanter, who on May 18 announced his
intention to leave the Court at the end of the term. Yet
Roosevelt did not immediately announce the nomination that
Robinson and his friends were now expecting. Instead, the
103
President dithered for two weeks. The Senate Judiciary
Committee recently had voted not to recommend his Court bill,
which appeared to be in deep trouble in the upper chamber.
Privately, FDR confided to Treasury Secretary Henry
Morgenthau that he could not appoint Robinson because he was
“not sufficiently liberal.” “If I had three vacancies,” the
President continued, “I might be able to sandwich in Joe
Robinson.” But, he told Morgenthau, he had no idea who, if
104
anyone, might retire in the immediate future. If the retirements
of, say, Sutherland and McReynolds were to provide two
additional vacancies, then the appointment of Robinson along
with two liberals would give Roosevelt a 5-4 working majority on
the Court. But if the two additional vacancies came from the
retirements of, say, Brandeis and Cardozo, then filling Van
Devanter’s seat with a Robinson appointment would offer no
net gain whatsoever. It would remain a Court of six
105
conservatives and three liberals.

102. SHESOL, supra note 3, at 345.

103. SHOGAN, supra note 20, at 202.
104. MCKENNA, supra note 2, at 469–70 (quoting, HENRY S. MORGENTHAU, JR.,
DIARIES, 69, 308–09). Roosevelt later claimed that he would have named Robinson to
the Court, see JAMES A. FARLEY, JIM FARLEY’S STORY: THE ROOSEVELT YEARS 89
(1948), and both Charles Michelson and FDR secretary Grace Tully confirm this. See
CHARLES MICHELSON, THE GHOST TALKS 182 (1944); GRACE TULLY, F.D.R. MY BOSS
224 (1949). Indeed, the White House came to recognize that failure to fulfill the pledge to
Robinson would set off a revolt in the Senate. See ALSOP & CATLEDGE, supra note 3, at
209–14; MCKENNA, supra note 2, at 458–60, 467–72; SHESOL, supra note 3, at 448–53,
458–60.
105. At a meeting with the President on July 6, Senator Burton Wheeler told
Roosevelt that Republican Senator William Borah of Idaho had authorized him to
promise the resignation of two more justices if FDR would withdraw his Court bill.
Wheeler assured Roosevelt that he had their word that the resignations would be
forthcoming, but a doubtful Roosevelt nevertheless declined the offer. SOLOMON, supra
note 4, at 225–26.
!!!CUSHMAN-291-COURT-PACKING AND COMPROMISE.DOC (DO NOT DELETE) 8/9/2013 2:15 PM

2013] COURT-PACKING AND COMPROMISE 19

The retirement of Justice Van Devanter did change

Roosevelt’s initial calculus, however. To be sure, Robinson’s
appointment to the vacant seat would not reduce the number of
conservatives on the Court. There still would be six of them. But
because he no longer was required to appoint Robinson to one
of the additional seats that would have been created by his
original Court-packing bill, FDR now needed fewer additional
appointments to insure a liberal majority. At this point he
needed only four additional justices to bring the number of
liberals from three to what would now be a commanding seven.
Thus, when Roosevelt finally summoned an irritated Robinson
to the White House in early June, and Robinson reported that
FDR’s six-justice plan was dead, the President authorized the
majority leader to work out the best compromise he could
106
salvage. However, he cautioned the aspiring justice that “if
there was to be a bride there must also be bridesmaids—at least
107
four of them.” Again, this number was not selected at random.
A four-justice compromise opened the possibility of raising
the age triggering appointment of an additional justice from
seventy to seventy-five. Brandeis, McReynolds, Sutherland, and
Hughes each had reached that age by mid-April of 1937, so that
even after the retirement of the aged Van Devanter there would
be enough elderly justices to provide Roosevelt with the
necessary number of appointments. Even the addition of a six-
month grace period would enable the President to nominate four
additional justices by October 11, 1937, only a week into the
Court’s next term. Kentucky Representative Fred Vinson
108
prepared just such a bill for introduction in early June. On
June 4, Cummings sent Solicitor General Stanley Reed a new

106. SOLOMON, supra note 4, at 218; SHOGAN, supra note 20, at 204.
107. 2 HAROLD L. ICKES, THE SECRET DIARY OF HAROLD L. ICKES 153 (1954).
108. MCKENNA, supra note 2, at 471 n.17. Vinson’s bill provided:
(a) When any judge of a court of the United States, appointed to hold his office
during good behavior, has heretofore or hereafter attained the age of seventy-
five years and has held a commission or commissions as judge of any such court
or courts at least ten years, continuously or otherwise, and within six months
thereafter has neither resigned nor retired, the President, for each such judge
who has not so resigned or retired, shall nominate, and by and with the advice
and consent of the Senate, shall appoint one additional judge to the court to
which the former is commissioned.”
See Memorandum from the Solicitor General to the Attorney General (June 1, 1937)
(unpublished manuscript) (on file with the University of Virginia). Note that the
provision for the appointment of an additional justice for any sitting justice who had
served for at least ten years, whether continuously or not, and had not retired within six
months of his seventy-fifth birthday, served to sweep in Hughes, who had served more
than ten years, but not continuously.
!!!CUSHMAN-291-COURT-PACKING AND COMPROMISE.DOC (DO NOT DELETE) 8/9/2013 2:15 PM

20 CONSTITUTIONAL COMMENTARY [Vol. 29:1

proposed bill which would have provided for a Court of no fewer

109
than eleven justices. The bill would have amended the Judicial
Code to provide that “[t]he Supreme Court shall consist of a
Chief Justice and ten Associate Justices. . . . If, however, at any
time the number of justices eligible for retirement shall
constitute a majority of the Court, the President with the advice
and consent of the Senate shall appoint such number of
additional justices as may be necessary to make the number of
justices not eligible for retirement exceed by not more than one
110
the number of justices eligible for retirement.” This proposal
would have permitted FDR immediately to appoint two
additional justices on top of the replacement for Van Devanter.
Assuming that this latter spot went to the sixty-five year old
Robinson, there would then be five justices over seventy and
eligible for retirement: Hughes, Brandeis, McReynolds,
Sutherland, and Butler. If Roosevelt offered the two additional
appointments to persons under seventy, this bill would have
given him no more additional appointments, and he would be
stuck with a Court comprised by six conservatives and five
liberals. But if Roosevelt strategically appointed liberal
septuagenarians to these two additional seats, then those eligible
for retirement would outnumber those below seventy by a
margin of 7-4. Such strategic appointments would bootstrap four
more additional appointments for the President, giving him a
liberal margin of 9-6 on a Court of fifteen. This bill, which might
have produced results very similar to those that would have
followed from enactment of Roosevelt’s original plan, did not
gain any traction in discussions with congressional leaders.
Later in the month, the Administration was considering
three different substitute bills. A brief cover memorandum
accompanying the text of each of the proposals explained that
“Draft No.1” would provide for “a permanent court of 11,” and
permitted additional appointments for each sitting justice aged
75 or older, but only one in each calendar year, with a maximum
membership of 15. “This draft will permit filling Mr. Justice Van
Devanter’s place and appointment of two new justices to bring
the court up to 11. In addition, one additional justice may be
appointed in 1937 and a second in 1938. This gives 4
111
appointments now and a 5th in January.” Assuming that Van

109. See Memorandum from the Solicitor General to the Attorney General (June 7,
1937) (unpublished manuscript) (on file with the University of Virginia).
110. Id.
111. Untitled Memorandum (unpublished manuscript) (on file with the University of
!!!CUSHMAN-291-COURT-PACKING AND COMPROMISE.DOC (DO NOT DELETE) 8/9/2013 2:15 PM

2013] COURT-PACKING AND COMPROMISE 21

Devanter’s seat went to Robinson, this proposal would have

permitted the appointment of three countervailing liberal
justices in 1937, deadlocking the Court at 6–6. The appointment
of an additional liberal in January of 1938 would have given
Roosevelt his working majority less than halfway through the
Court’s next term.
The memorandum explained that “Draft No. 2” would also
provide for “a permanent Court of 11.” This draft, however,
would permit the appointment of additional justices only “if a
majority of the Court is over 75,” and then only at the rate of
one per calendar year and with a maximum membership of 15.
The memorandum explained that, because only four of the
current justices of what would become an eleven-member Court
were over 75, “[t]he provisions for additional justices because of
an aged Court will not be operative unless every justice now
over 66 stays on the Court until March 2, 1945 (when both
Butler and Cardozo have become 75).” Only then would a
majority of the Court be over 75. Thus, the memo explained, this
proposal would “permit filling Mr. Justice Van Devanter’s place
and also the appointment of two new justices to bring the Court
112
up to 11.” Assuming that Van Devanter’s seat went to
Robinson, this proposal therefore would have given FDR only
five reliable votes on an 11-member Court. Only with the
retirement of another conservative justice would Roosevelt have
his majority.
The memorandum explained that “Draft No. 3” would
provide for “a permanent court of 9.” Additional justices could
be appointed for each justice over 75, but only one per calendar
year, and with a maximum membership of 15. The memorandum
observed that “[t]his draft will permit filling Mr. Justice Van
Devanter’s place and also the appointment of one additional
justice in 1937 and a second in 1938. This gives two appointments
113
and a third in January.” Again assuming Robinson’s
appointment to Van Devanter’s seat, and assuming no further
deaths or resignations, this proposal would have resulted in a 6–4
conservative majority for the remainder of 1937, a 6–5
conservative majority in 1938, and a deadlocked Court in 1939.
Only in January of 1940 would the President have his 7–6 liberal
majority.

Virginia).
112. Id.
113. Id.
!!!CUSHMAN-291-COURT-PACKING AND COMPROMISE.DOC (DO NOT DELETE) 8/9/2013 2:15 PM

22 CONSTITUTIONAL COMMENTARY [Vol. 29:1

Moreover, as a Justice Department memorandum pointed

out, the proposal’s provision for a permanent Court of nine
meant that if a sitting justice were to retire, resign, or die during
a year in which there were more than nine justices on the Court,
that justice could not be replaced with a new appointment. Thus,
to illustrate, assume that Robinson were appointed to Van
Devanter’s seat, that Black were appointed as an additional
justice in 1937, that Reed were appointed as an additional justice
in 1938, that Frankfurter were appointed as an additional justice
in 1939, and that there were no other personnel changes to the
Court. As of 1939 the Court would consist of twelve justices,
evenly divided between liberals and conservatives. Now suppose
that as a result of some combination of retirements and deaths
Brandeis, Stone, and Cardozo all were to leave the Court in
1939. Under these circumstances, the memo pointed out,
Roosevelt could appoint replacements for none of them. The
Court would shrink back to a membership of nine, with six
conservatives and three liberals. Roosevelt could appoint an
additional justice in 1940, but that would only bring the margin
back to 6–4 in favor of the conservatives. Assuming no
conservative deaths or retirements, it would be January of 1942
before the Court was even back to its 1939 deadlock, and 1943
before the President would have his majority. Thus, the memo
observed, “[t]his plan will not add to the opportunity to
liberalize the bench by filling normal vacancies through death,
retirement or resignation. The effect of its provisions for
shrinking back to nine in the present condition of the Court will
probably work out practically as merely substituting one
appointment a year under the ‘age principle’ for the normal
expectancy of one appointment a year by filling vacancies
114
occasioned through resignation, retirement or death.”
Even an additional conservative resignation would not solve
Roosevelt’s problem. Again, assume Robinson’s appointment to
Van Devanter’s seat, Black’s appointment as an additional
justice in 1937, and Reed’s appointment as an additional justice
in January of 1938. Assuming no other personnel changes, this
would yield a 6-5 conservative majority. Now assume that
immediately following Reed’s appointment Sutherland were to
retire. Under the terms of the proposal, FDR would not be
entitled to appoint a successor to Sutherland, and the Court
would deadlock at 5-5 for the remainder of 1938. Only in

114. Memorandum on the Features of the Proposed Plan, supra note 62.
!!!CUSHMAN-291-COURT-PACKING AND COMPROMISE.DOC (DO NOT DELETE) 8/9/2013 2:15 PM

2013] COURT-PACKING AND COMPROMISE 23

January of 1939 would the President be authorized to appoint a

third additional justice to secure a 6-5 majority. Thus, the memo
pointed out, ‘“[e]ven if Mr. Justice Sutherland should retire
during 1938 there would thus be no assurance of a liberal
115
majority during 1938.”
The author of the memo worried that “[t]his raises very real
practical risks over the next two years in view of the following
facts:
(1) The cases which will come before the Court in the
next and the succeeding terms will be power cases (on
which the present
116
court showed its teeth on the117
last
decision day) and labor cases (Wagner Act and
118
Black-Connery Bill ) which the new statute providing
for direct appeal will bring to the Court a year earlier
than heretofore.”
(2) After the passage of the Supreme Court statute,
Hughes and Roberts will have no further incentive for
shot-gun liberalism and are far more likely to be
actuated by impulses of revenge.
(3) After any new judges have been appointed by this
Administration, the Court will have become the
Administration’s ‘packed
119
court’—beyond criticism by
the Administration.”
“Under such circumstances,” the memo concluded, “the
present form of the proposed provisions for shrinking the Court
back to nine make them exceedingly dangerous.” It was “very
important that: (1) The Court should reach its maximum liberal

115. Id.
116. The reference here is to the Court’s announcement on June 1 that it had
granted certiorari in Alabama Power v. Ickes and Iowa City Light & Power Co. v. Ickes,
301 U.S. 681 (1937), challenging the power of the Public Works Administration to make
loans and grants to municipalities in order to construct and operate electrical power
plants that would compete with private companies in the production and distribution of
electricity. Alabama Power would be decided in early 1938, see infra note 141. The
decree in Iowa City would be vacated and the case dismissed as moot in October of 1937,
see 302 U.S. 769 (1937).
117. The reference here is presumably to Santa Cruz Fruit Packing Co. v. NLRB,
303 U.S. 453 (1938), Consolidated Edison Co. v. NLRB, 305 U.S. 188 (1938), and NLRB
v. Fainblatt, 306 U.S. 601 (1939), each of which involved questions of the power of
Congress under the National Labor Relations Act to regulate the labor relations of
companies engaged in manufacturing or production.
118. The Black-Connery bill, which would form the basis of what would become the
Fair Labor Standards Act of 1938, had been introduced in Congress on May 24. John S.
Forsythe, Legislative History of the Fair Labor Standards Act, 6 LAW & CONTEMP.
PROBS. 464, 465-90 (1939).
119. Memorandum on the Features of the Proposed Plan, supra note 62.
!!!CUSHMAN-291-COURT-PACKING AND COMPROMISE.DOC (DO NOT DELETE) 8/9/2013 2:15 PM

24 CONSTITUTIONAL COMMENTARY [Vol. 29:1

strength as quickly as possible because the crucial years for

decisions under the New Deal are the next two when the statutes
120
passed this year will be under adjudication,” and “(2) Because
of the accusations of a packed Court and the necessity for public
confidence in the new decisions, the liberal majorities should be
as wide as possible as soon as possible.” The proposed bill did
121
not achieve those critical objectives.
Located in the Homer Cummings papers is an unsigned
speech, apparently prepared early in the Court fight, which
argued that securing a liberal Court majority was a matter of
pressing urgency and that pursuit of a constitutional amendment
would involve unacceptable delay. The speech concluded by
urging its audience to “[f]ollow the judgment of the President
and leader who has never failed your needs nor failed to win
your battles. Follow his judgment that a bird in the hand this
Spring is worth far more than the same bird in the bush three or
122
four years from now!” The consideration of Drafts 2 and 3
evinced a recognition that the bird that the President had sought
in the Spring was no longer within his grasp, and that he might
indeed have to wait nearly three years to possess it.
The bill ultimately introduced in the Senate by Robinson
was a variation on Draft No. 3. It permitted the appointment, at
the rate of no more than one per year, of an additional justice for
each sitting justice aged seventy-five or older. Robinson’s bill
solved the problem of Court shrinkage identified in the Justice
Department memorandum by allowing the President to fill
vacancies caused by death, resignation, or retirement if it were

120. In March Congress had passed a second Bituminous Coal Conservation Act to
replace the one struck down in Carter v. Carter Coal Co. The Administration also
anticipated the passage in 1937 of the Fair Labor Standards Act and a new Agricultural
Adjustment Act to replace the statute invalidated in United States v. Butler, but neither
was enacted until 1938. Roosevelt also hoped for passage of Senator George Norris’s
regional planning bill, the so-called “seven little TVA’s,” but that measure also failed of
passage. WILLIAM E. LEUCHTENBURG, FRANKLIN D. ROOSEVELT AND THE NEW DEAL
161–62, 250–51, 255, 261–62 (1963) [hereinafter LEUCHTENBURG, NEW DEAL]; DEXTER
PERKINS, THE NEW AGE OF FRANKLIN ROOSEVELT 63 (1957); RONALD L. FEINMAN,
TWILIGHT OF PROGRESSIVISM: THE WESTERN REPUBLICAN SENATORS AND THE NEW
DEAL 137–39 (1981); MCKENNA, supra note 2, at 442; SOLOMON, supra note 4, at 258.
121. Memorandum on the Features of the Proposed Plan, supra note 62. “Under
such circumstances, it would seem that the Administration’s supporters in Congress
intended that the idea of one new judge a year for each judge over 75 should not be in
substitution for but additional to the normal filling of vacancies in the Court occasioned
by the death, retirement or resignation of any justice whether or not over 75.” Id. See
also Memorandum on the Proposed Substitute Court Bill (unpublished manuscript) (on
file with the Unversity of Virginia).
122. The Real Issue (unpublished manuscript) (on file with the University of
Virginia).
!!!CUSHMAN-291-COURT-PACKING AND COMPROMISE.DOC (DO NOT DELETE) 8/9/2013 2:15 PM

2013] COURT-PACKING AND COMPROMISE 25

necessary to maintain at no fewer than nine the number of

justices under the age of 75. But it did nothing to increase the
rate at which additional justices might be appointed, and
therefore nothing to ameliorate the concern that the Court
123
might remain under conservative control until January of 1940.
124
Debate on the substitute bill began July 6. Robinson
believed that a narrow majority of Senators ultimately would
125
vote for the bill, but it faced the prospect of a dogged filibuster
126
in the upper chamber and the determined opposition of the
127
Judiciary Committee in the House. The bill never would
surmount either of these hurdles. As the week wore on votes
128
began to slip away, and the Washington summer heat and the
strain of the struggle took their toll on the Majority Leader. On
July 14 he was found dead of a heart attack on the floor of his
129
Capitol Hill apartment.
Robinson’s death sealed the fate of the substitute bill. A
number of Senators had pledged to support the measure only
130
out of personal affection for the Majority Leader. Four of
these legislators paid an unscheduled call to the White House on
July 15 and pleaded with the President to withdraw the
substitute bill and agree to some other accommodation. Once
131
again, the President rejected the overture. Within a week the
number of defecting Democrats had grown even larger, and
Vice-President Garner informed Roosevelt that he lacked the
votes to pass the bill in the Senate. Roosevelt authorized Garner

123. 81 Cong. Rec. 6788 (July 6, 1937). Cf. William E. Leuchtenburg, FDR’s Court-
Packing Plan: A Second Life, A Second Death, 1985 DUKE L.J. 673, 680 (1985)
[hereinafter Leuchtenburg, Second Life] (“Under this so-called “compromise,” FDR lost
very little. The most immediate effect of the measure would be to permit Roosevelt by
the beginning of January 1938—only six months away—to add three justices to the
Court: one for the 1937 calendar year, one for the 1938 calendar year, and one to fill Van
Devanter’s slot”); SHESOL, supra note 3, at 477–78 (Roosevelt “had not sacrificed much
in terms of the Court bill’s provisions”).
124. MCKENNA, supra note 2, at 496–98.
125. Id. at 495; SOLOMON, supra note 4, at 235; MacColl, supra note 2, at 457, 463.
126. ALSOP & CATLEDGE, supra note 3, at 246, 248, 250; BAKER, supra note 3, at
233–35, 239, 246–47; MCKENNA, supra note 2, at 499, 501; SOLOMON, supra note 4, at
187, 220, 231, 235; SHESOL, supra note 3, at 475.
127. ALSOP & CATLEDGE, supra note 3, at 264–65; BAKER, supra note 3, at 243;
MCKENNA, supra note 2, at 504; End of Strife, TIME, July 26, 1937.
128. End of Strife, supra note 127, at 10–13.
129. ALSOP & CATLEDGE, supra note 3, at 254–67; BAKER, supra note 3, at 240–53;
MCKENNA, supra note 2, at 498–505.
130. PATTERSON, supra note 4, at 123; SOLOMON, supra note 4, at 242; MacColl,
supra note 2, at 463; Leuchtenburg, Second Life, supra note 123, at 687.
131. ALSOP & CATLEDGE, supra note 3, at 269-70; BAKER, supra note 3, at 255–56;
SOLOMON, supra note 4, at 242.
!!!CUSHMAN-291-COURT-PACKING AND COMPROMISE.DOC (DO NOT DELETE) 8/9/2013 2:15 PM

26 CONSTITUTIONAL COMMENTARY [Vol. 29:1

to seek another compromise, but Wheeler and the opposition

132
stood firm against any enlargement of the Court. On July 22
the Senate voted to recommit the bill to the Judiciary
Committee with instructions that all provisions concerning the
133
Court’s membership be deleted. Robinson’s death thus “was
the end, not only of the original plan, but the compromise
134
version as well.” “The death of Joe Robinson,” Professor
Leuchtenburg concludes, “doomed all hopes for Roosevelt’s
135
plan.”
But if Robinson’s death made passage of the compromise
136
bill impossible, it also made it unnecessary. Unburdened of the
obligation to appoint the conservative Arkansas Senator to Van
Devanter’s seat, Roosevelt was now free to nominate the liberal
Senator Hugo Black of Alabama, who was confirmed August
137
17. This only narrowed the conservative margin from 6–3 to 5–
4, meaning that Roosevelt would need still another conservative
retirement in order to secure his liberal majority. But that
retirement would not be long in coming. Like his colleague
Justice Van Devanter, Justice Sutherland actually made his
decision to leave the Court shortly after the passage of Hatton
138
Sumners’ judicial retirement bill in early March. He later
informed several correspondents that the pendency of the Court-
packing plan was the only reason that he had not retired shortly
139
thereafter. He would remain on the bench only for a portion of
the 1937 October term, during which time he would participate

132. ALSOP & CATLEDGE, supra note 3, at 278–83; MCKENNA, supra note 2, at 514–
16; SOLOMON, supra note 4, at 248–50; Leuchtenburg, Second Life, supra note 123, at
687.
133. ALSOP & CATLEDGE, supra note 3, at 285-94; BAKER, supra note 3, at 271–74;
MCKENNA, supra note 2, at 517–21.
134. PATTERSON, supra note 4, at 123.
135. Leuchtenburg, “Packing” Plan, supra note 10, at 105.
136. See Senator Robinson’s Death Shocks the Nation, THE CHRISTIAN CENTURY,
July 28, 1937, at 940 (“Harsh as it sounds to say it, Mr. Robinson’s death actually adds to
the reasons why the President does not need any longer to have a court-packing bill
passed in order to safeguard the legality of liberal legislation”); Death and Politics, supra
note 44, at 88 (“however much the President personally mourns the loss of a close and
devoted friend, the inherent consequences of Senator Robinson’s death should be, in
political terms, favorable to the President’s larger program”).
137. Justices of the Supreme Court of the United States During the Time of these
Reports, 302 U.S. iii (1937).
138. THE AUTOBIOGRAPHICAL NOTES OF CHARLES EVANS HUGHES, supra note 98,
at 303.
139. Letter from George Sutherland to Nicholas Murray Butler (Jan. 12, 1938)
(unpublished manuscript) (on file with the Library of Congress); Letter from George
Sutherland to Mr. Preston (Jan. 18, 1938) (unpublished manuscript) (on file with the
Library of Congress); Letter from George Sutherland to Richard R. Lyman (Jan. 21,
1938) (unpublished manuscript) (on file with the Library of Congress).
!!!CUSHMAN-291-COURT-PACKING AND COMPROMISE.DOC (DO NOT DELETE) 8/9/2013 2:15 PM

2013] COURT-PACKING AND COMPROMISE 27

in only a handful of significant cases. In none of these would he

140
cast the deciding vote. He would not participate in any more
cases involving the National Labor Relations Act, and his
retirement came months before the Fair Labor Standards Act
even became law. However, he did participate in the pending
power cases about which the Justice Department memo had
expressed such concern the preceding summer. In fact, he wrote
the opinion in each case. And in each instance the Government’s
141
position prevailed.
It was on January 5, 1938, just two days after he had
awarded the Government its victory in the power cases, that
Sutherland wrote to the President to inform him of his intention
to retire on the 18th of the month. Roosevelt nominated Stanley
Reed to replace Sutherland on January 15. The nomination was
confirmed by the Senate on January 25, and Justice Reed
142
assumed his seat on the Court on January 31. Reed’s
replacement of Sutherland had at long last secured for the
President the liberal Court majority he so intensely desired. On
February 5, 1938, a year to the day after Roosevelt had
announced his plan, and less than a week after Reed had taken
the oath of office, Frank Gannett wrote to a correspondent:
“‘Since the President now controls the Supreme Court, our only
hope lies in influencing the members of Congress.’” “Little
wonder,” observed Professor Leuchtenburg, “that Roosevelt
143
claimed that he had lost the battle but won the war.”
In claiming that he had won the war, FDR meant that the
Court-packing plan had induced the justices to uphold legislation
144
that they would not otherwise have approved. This particular

140. See Breedlove v. Suttles, 302 U.S. 77 (1937 (unanimously upholding Georgia
poll tax); Palko v. Connecticut, 302 U.S. 319 (1937) (holding by a vote of 8–1 that the
Double Jeopardy Clause does not apply to the States); James v. Dravo Contracting Co.,
302 U.S. 134 (1937) (holding, by a vote of 5–4, that imposition of a state corporate
income tax on a federal government contractor did not violate the federal government’s
intergovernmental tax immunity).
141. Alabama Power Co. v. Ickes, 302 U.S. 464 (1938) (unanimously holding that a
private power company lacked standing to challenge the constitutionality of loans and
grants made by the Public Works Administration to municipalities to construct and
operate electrical generation and distribution systems in competition with the private
company); Duke Power Co. v. Greenwood County, 302 U.S. 485 (1938) (same).
142. 303 U.S. iv (1938).
143. Leuchtenburg, “Packing” Plan, supra note 10, at 109 (quoting Letter from
Frank Gannett to E.A. Dodd (Feb. 5, 1938) (unpublished manuscript)).
144. ROOSEVELT, supra note 7, at lxvi–lxxii. See also Memorandum (July, 1939)
(unpublished manuscript) (on file with the University of Virginia) and Supplemental
Memorandum (July, 1939) (unpublished manuscript) (on file with the University of
Virginia). Others have shared Roosevelt’s view. See, e.g., Richard H. Pildes, Is the
!!!CUSHMAN-291-COURT-PACKING AND COMPROMISE.DOC (DO NOT DELETE) 8/9/2013 2:15 PM

28 CONSTITUTIONAL COMMENTARY [Vol. 29:1

145
claim is quite doubtful. Indeed, the Administration’s
assessment of the longer-term reliability of Hughes and Roberts
as supporters of economic regulation proved to be correct.
Though they would vote to uphold a number of New Deal
146
initiatives after 1937, these two justices nevertheless persisted
in voting to invalidate federal and state regulations of the
147
economy on the grounds that they violated the Takings or Due
148
Process Clauses of the Fifth Amendment, or the Due
149 150 151
Process, Equal Protection, or Privileges or Immunities

Supreme Court A “Majoritarian” Institution?, 2010 SUP. CT. REV. 103, 132 (2010) (“The
conventional wisdom among constitutional academics, focused narrowly on the Court
itself, is that FDR lost the battle, but won the war”).
145. See MCKENNA, supra note 2, at xx–xxv, 436-37, 536; G. EDWARD WHITE, THE
CONSTITUTION AND THE NEW DEAL (2000); BARRY CUSHMAN, RETHINKING THE NEW
DEAL COURT: THE STRUCTURE OF A CONSTITUTIONAL REVOLUTION (1998); Richard
D. Friedman, Switching Time and Other Thought Experiments: The Hughes Court and
Constitutional Transformation, 142 U. PA. L. REV. 1893 (1994).
146. See, e.g., Phelps-Dodge Co. v. NLRB, 313 U.S. 177 (1941) (upholding National
Labor Relations Act (NLRA) against Fifth Amendment challenge); Sunshine Anthracite
Coal v. Adkins, 310 U.S. 381 (1940) (upholding Bituminous Coal Conservation Act of
1937); Mulford v. Smith, 307 U.S. 38 (1939) (upholding Agricultural Adjustment Act of
1938); NLRB v. Fainblatt, 306 U.S. 601 (1939) (upholding NLRA against Commerce
Clause challenge); Tennessee Power Co. v. Tennessee Valley Authority, 306 U.S. 118
(1939) (upholding right of TVA to sell electric power in competition with private power
companies); Currin v. Wallace, 306 U.S. 1 (1939) (upholding Tobacco Inspection Act of
1935); Consolidated Edison v. NLRB, 305 U.S. 197 (1938) (upholding NLRA against
Commerce Clause challenge); United States v. Bekins, 304 U.S. 27 (1938) (upholding
Municipal Bankruptcy Act of 1937); NLRB v. Santa Cruz Fruit Packing Co., 303 U.S. 453
(1938) (upholding NLRA against Commerce Clause challenge); Electric Bond Co. v.
SEC, 303 U.S. 419 (1938) (upholding Public Utility Holding Company Act of 1935);
Alabama Power Co. v. Ickes, 302 U.S. 464 (1938) (holding that privately-owned power
companies had no standing to challenge the constitutionality of federal loans and grants
to aid in the construction of municipally-owned power plants).
147. See United States v. Willow Power Co., 324 U.S. 499, 511–15 (1945) (Roberts,
J., and Stone, C.J., dissenting from opinion holding that government action reducing the
flow of water available to an electrical power plant did not constitute a taking requiring
compensation under the Fifth Amendment); United States v. Commodore Park, Inc., 324
U.S. 386, 393 (1945) (Roberts, J., dissenting from opinion holding that the Fifth
Amendment did not require compensation of riparian landowner whose property was
reduced in market value but not invaded by government dredging operation).
148. See United States v. Rock-Royal Co-op, Inc., 307 U.S. 533, 583-87 (1939)
(Roberts, J. and Hughes, C.J. dissenting from opinion upholding against a due process
challenge an order issued by the Secretary of Agriculture pursuant to the Agricultural
Marketing Agreement Act of 1937).
149. See R.R. Comm’n of Tex. v. Rowan & Nichols Oil Co., 310 U.S. 573, 577 (1940)
(Roberts, J., and Hughes, C.J, dissenting from opinion holding that oil proration order of
Texas Railroad Commission did not deprive the company of its property without due
process); Thompson v. Consolidated Gas Utilities, Corp., 300 U.S. 55 (1937) (Hughes,
C.J., and Roberts, J., join opinion invalidating gas proration order of Texas Railroad
commission on the ground that it deprived the company of its property without due
process).
150. See Charleston Fed. Savings & Loan Ass’n v. Alderson, 324 U.S. 182, 192–92
(1945) (Roberts, J., dissenting from opinion upholding tax assessments against equal
!!!CUSHMAN-291-COURT-PACKING AND COMPROMISE.DOC (DO NOT DELETE) 8/9/2013 2:15 PM

2013] COURT-PACKING AND COMPROMISE 29

Clauses of the Fourteenth. Internal Court records reveal that it

was only very reluctantly that Hughes agreed to join the portion
152
of United States v. Darby upholding federal regulation of wages
and hours of employees engaged in “production for
153
commerce.” Such records similarly show that Roberts initially
opposed upholding the regulation sustained in Wickard v.
154
Filburn, and there is reason to doubt that either of the justices
ultimately would have voted to sustain those measures had more
of their colleagues shared their reservations. Even after Darby,
Roberts would file dissents from decisions upholding the
application of the Fair Labor Standards Act to various local
employments on the ground that the Commerce Clause did not
155
authorize Congress to reach them. And though he eventually
156
acquiesced in the authority of these precedents, he continued
to construe the statute not to apply to matters of purely local
157
concern that he believed were reserved to the states. Roberts
also persisted in registering dissenting objections to delegations
158
of congressional authority to the executive branch, and
throughout his tenure remained “in almost continuous
opposition” to the claims of the administrative agencies that
159
were integral to the New Deal vision of government. Roosevelt

protection challenge); Hartford Steam Boiler Inspection & Insurance Co. v. Harrison,
301 U.S. 459 (1937) (Hughes, C.J., joining opinion invalidating Georgia statute imposing
different regulations on stock and mutual insurance companies).
151. See Madden v. Kentucky, 309 U.S. 83, 93–94 (1940) (Roberts, J., dissenting from
opinion upholding state tax against equal protection and privileges or immunities
challenges).
152. 312 U.S. 100 (1941).
153. See CUSHMAN, supra note 145, at 208–09.
154. 317 U.S. 111 (1942). See CUSHMAN, supra note 145, at 212–13.
155. Warren-Bradshaw Drilling Co. v. Hall, 88, 93–95 (1942) (Roberts, J.,
dissenting); A. B. Kirschbaum v. Walling, 316 U.S. 517, 527 (1942) (Roberts, J.,
dissenting).
156. See Armour & Co. v. Wantock, 323 U.S. 126 (1944); Walton v. Southern
Packing Corp., 320 U.S. 540, 543 (1944).
157. See Borden v. Borella, 325 U.S. 679, 685–86 (1945) (Stone, C.J., and Roberts, J.,
dissenting); East 40th Street Building, Inc., v. Callus, 325 US. 578 (1945); Western Union
Telegraph Co. v. Lenroot, 323 .S. 490 (1945); McLeod v. Threlkeld, 319 U.S. 91 (1943);
Overstreet v. North Shore Corp., 318 U.S. 120 (1943) (Roberts, J., and Jackson, J.,
dissenting); Overnight Motor Transportation Co., Inc., v. Missal, 316 U.S. 572 (1942)
(Roberts, J., dissenting).
158. See Bowles v. Willingham, 321 U.S. 503, 529 (1945) (Stone, C.J. and Roberts, J.,
dissenting from opinion rejecting non-delegation challenge to Emergency Price Control
Act of 1942); Yakus v. United States, 321 U.S. 414, 448 (1944) (Roberts, J., dissenting
from opinion rejecting non-delegation challenge to Emergency Price Control Act of
1942); H.P. Hood & Sons v. United States, 307 U.S. 588, 583 (1939) (Roberts, J.,
dissenting from opinion rejecting non-delegation challenge to Agricultural Marketing
Agreement Act of 1937).
159. C. HERMAN PRITCHETT, THE ROOSEVELT COURT 191 (1963).
!!!CUSHMAN-291-COURT-PACKING AND COMPROMISE.DOC (DO NOT DELETE) 8/9/2013 2:15 PM

30 CONSTITUTIONAL COMMENTARY [Vol. 29:1

and his advisors were right: Hughes and Roberts were not
“dependable.”
Yet there is truth to the larger claim that Roosevelt won the
war, if only because the conflict was a war of attrition. Sumners’
retirement bill was sufficient to assure the prompt departures of
Van Devanter and Sutherland, which combined with Robinson’s
death in July assured the President of a liberal Court majority.
As Senator Ashurst counseled Roosevelt somewhat ghoulishly
not long before the announcement of the Court-packing plan,
160
“Father Time, with his scythe, is on your side.”
On the morning of February 5, 1937, Tommy Corcoran took
a cab to the Supreme Court building. His task was to warn
Justice Brandeis of the President’s forthcoming announcement
of the Court-packing proposal before it became public
knowledge. Corcoran entered the justices’ robing room to the
disapproving looks of Hughes and McReynolds, and handed
Brandeis a press release outlining the President’s proposal. After
reading it, the Justice thanked Corcoran for his courtesy, but
then added, “tell your president he has made a grave mistake.
161
All he had to do was wait a little while. I’m sorry for him.”
Brandeis was, of course, correct. One can understand why, in
early 1937, Roosevelt thought that he needed to expand the
Court’s membership to fifteen in order to have a “dependable
bench” within a reasonably short time. In retrospect, however, it
becomes clear that the realization of this objective did not
require any expansion of the Court at all. Meanwhile, the
President’s Court-packing proposal helped to precipitate the
formation of an opposition bloc in Congress that would frustrate
162
much of his second-term legislative agenda. From the vantage
of history, therefore, it appears that the Court-packing plan was
an entirely unnecessary misadventure through which Roosevelt
ultimately lost far more than he gained.

160. BAKER, supra note 3, at 8; SHESOL, supra note 3, at 206.

161. SHESOL, supra note 3, at 297.
162. See LEUCHTENBURG, New Deal, supra note 120, at 250–54, 260, 272–73, 279
(1963); PATTERSON, supra note 4, at 126–337; FEINMAN, supra note 120, at 136–44; PAUL
CONKIN, THE NEW DEAL 90 (2d ed. 1975); WILLIAM E. LEUCHTENBURG, THE
SUPREME COURT REBORN 156–59 (1995); MCKENNA, supra note 2, at 301, 442.