How Roosevelt checked the Supreme Court during the Great Depression

T. R. Andhyarujina
The Hindu, November 14

His court packing bill encountered opposition. Though he lost the battle, he won the war to change the attitude of the Supreme Court judges.

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The U.S. Supreme Court invalidated 10 vital New Deal laws
In 1937, Roosevelt announced a Bill to change the Court’s composition
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The present world economic crisis originating from the United States and measures to tackle it there brings back memories of the Great Depression of the 1930s and the New Deal legislation of President Roosevelt to overcome it. One of the gripping chapters of that saga is how the U.S. Supreme Court initially thwarted important parts of the New Deal legislation of President Roosevelt by declaring them unconstitutional and how the President attempted to overcome the judicial obstruction to the New Deal laws by packing the Court with judges of his choice.

When President Roosevelt of the Democratic Party came to office in 1932 for his first term, 7 out of the 9 judges of the U.S. Supreme Court had been appointed by earlier Republican Presidents. From 1935 onwards a majority of conservative judges of ages over 70 of the Supreme Court invalidated 10 vital New Deal laws that were enacted by the Congress to overcome social and economic insecurity arising from the Great Depression, notably the National Industrial Recovery Act, the Railroad Retirement Act and the Agricultural Adjustment Act. The Court held these laws violated the freedom of contract of individuals and due process of law. President Roosevelt strongly criticised these decisions as an overreach of judicial authority frustrating the social and economic forces needed to combat the Great Depression.

Critics of the Court singled out four of the judges, Justices Van Devanter, McReynold, Sutherland and Butler as the “Four Horsemen of Reaction.” Together with the swing vote of Justice Owen Roberts they created a majority of 5 judges to 4 to invalidate important New Deal laws.

Roosevelt made these decisions of the Supreme Court thwarting the New Deal laws his re-election manifesto and promised to overcome the judicial veto when re-elected. On November 3, 1936 Roosevelt was re-elected with an electorate landslide and on February 5, 1937, he announced his Judiciary Reorganizing Bill 1937 to change the Court’s composition of the adverse majority to his programmes. This came to be known as the notorious Court Packing Plan of Roosevelt.

The essence of this proposed legislation was to replace every sitting judge of the Supreme Court over the age of 70 and six months with a new judge. Roosevelt would then have the chance to appoint six more judges, presumably having his philosophy of being favourable to the New Deal legislation and thereby increasing the size of the Court to 15 judges.

Roosevelt promoted this law in one of his “Fireside Chats” on the national radio to the nation on March 9, 1927. It remains today as the most outspoken and withering criticism of a nation’s Supreme Court of judicial overreaching into domains of the executive and legislature. His words are worth recalling.

Roosevelt said, “In the last four years the Court has been acting not as a judicial body, but as a policy-making body. When Congress has sought to stabilise national agriculture, to improve the conditions of labour, to safeguard business against unfair competition, to protect our national resources, and in many other ways, to serve our clearly national needs, the majority of the court has been assuming the power to pass on the wisdom of these acts of Congress — and to approve or disapprove the public policy written in these laws.”

He went on to say “The Court has improperly set itself up as a third house of the Congress — a super-legislature, reading into the Constitution words and implications which are not there, and which were never intended to be there. We have, therefore, reached the point as a nation where we must take action to save the Constitution from the Court and the Court from itself. We must find a way to take an appeal from the Supreme Court to the Constitution itself. We want a Supreme Court, which will do justice under the Constitution and not over it. In our courts we want a government of laws and not of men.”

Roosevelt’s court packing bill rightly encountered strong opposition in the nation as subverting the independence of the highest court and it failed to pass into law. Although Roosevelt lost the battle he won the war to change the attitude of the judges of the Supreme Court. Within a few days of Roosevelt’s Fireside chat, on March 29, 1937, Justice Owen Roberts, who held the decisive swing vote position, changed his previously held view of opposition on an important New Deal regulation relating to minimum wages thus enabling the court by 5 to 4 to hold it valid. This was the famous “Switch in time that saved the Nine” in judicial history of the U.S.

There followed important changes in the Court’s view on the National Labour Act and Social Security tax which the Court now held to be valid and constitutional. Shortly, thereafter, the leader of the four Horsemen Justice Van Devanter resigned realising as one observer said that “the jig was up.” Six months later Justice Sutherland also resigned. The complexion of the Supreme Court totally changed without Roosevelt’s court packing plan. Roosevelt went on to appoint five new justices in his second term in usual course. With these changes Supreme Court’ s attitude to economic reform laws changed for all times to an understanding deference in policy matters of government.

This interlude in the history of the U.S. Supreme Court has lessons for all democracies governed by the rule of law. First is that even the highest judiciary at times tends to overstep its limits and intrude into policies of government with disastrous results for the nation. Secondly, methods to pack the court by government to obtain favourable verdicts can never be the means to correct the court verdicts even if they are egregiously wrong.

(The writer is a senior advocate and former Solicitor-General of India.)

Corrections and Clarifications

An article "How Roosevelt checked the Supreme Court during the Great Depression" (Op-Ed, November 14, 2008) said, in the sixth paragraph, that Roosevelt promoted this law in one of his "Fireside Chats" on the national radio to the nation on March 9, 1927. It should have been "Tuesday, March 9, 1937". President Roosevelt's 35 minute 28 second-long speech was called the "Fireside Chat on Reorganization of the Judiciary".