But Roosevelt kept Congressional leaders, his cabinet (save for Cummings) and the American people in the dark, deceiving even the shrewdest experts. On January 24, 1937, the editor of the authoritative journal United States Law Week declared that it was “plain that he does not at the present time have in mind any legislation directed at the Court.” The Supreme Court itself had no inkling of what was afoot. When the president entertained the judiciary at a White House dinner on February 2, he told adviser Donald Richberg that “his choice should be whether to take only one cocktail before dinner and have it a very amiable affair, or to have a mimeographed copy of the program laid beside the plate of each justice and then take three cocktails to fortify himself against their reactions.” The banquet was an amiable affair. But as the evening drew to a close, Idaho’s senator William Borah, sensing something as he saw the president chatting with two of the justices, remarked: “That reminds me of the Roman Emperor who looked around his dinner table and began to laugh when he thought how many of those heads would be rolling on the morrow.”
Three days later, on February 5, 1937, Roosevelt shocked Congress, his closest advisers and the country by unleashing a thunderbolt. He asked Congress to empower him to appoint an additional justice for any member of the court over age 70 who did not retire. He sought to name as many as six additional Supreme Court justices, as well as up to 44 judges to the lower federal courts. He justified his request not by contending that the court’s majority was reactionary, but by maintaining that a shortage of judges had resulted in delays to litigants because federal court dockets had become overburdened.
“A part of the problem of obtaining a sufficient number of judges to dispose of cases is the capacity of the judges themselves,” the president observed. “This brings forward the question of aged or infirm judges—a subject of delicacy and yet one which requires frank discussion.” He acknowledged that “in exceptional cases,” some judges “retain to an advanced age full mental and physical vigor,” but quickly added, “Those not so fortunate are often unable to perceive their own infirmities.” Life tenure, he asserted, “was not intended to create a static judiciary. Aconstant and systematic addition of younger blood will vitalize the courts.”
Roosevelt’s message touched off the greatest struggle in our history among the three branches of government. It also triggered the most intense debate about constitutional issues since the earliest weeks of the Republic. For 168 days, the country was mesmerized by the controversy, which dominated newspaper headlines, radio broadcasts and newsreels, and spurred countless rallies in towns from New England to the PacificCoast. Members of Congress were so deluged by mail that they could not read most of it, let alone respond. Senator Hiram Johnson of California noted, “I received some hundreds of letters a day, all on the Court—sometimes some thousands,” and Senator Royal Copeland of New York, inundated by 30,000 letters and telegrams, begged his constituents to desist. Both sides believed the future of the country was at stake. If Roosevelt won, opponents warned, he would destroy the independence of the judiciary and create an evil precedent for successors who wished to “pack” the court. If Roosevelt lost, his supporters countered, a few judges appointed for life would be able to ignore the popular will, destroy programs vital to the welfare of the people, and deny to the president and Congress the powers exercised by every other government in the world. Although the country divided evenly on the issue—about as many were for Roosevelt’s plan as against it—the opposition drew far more attention, especially on editorial pages.
Despite widely publicized expressions of hostility, political pundits expected the legislation to be enacted. So long were FDR’s coattails in the 1936 contest that when the Senate convened in the new year, many Democrats had to sit on the Republican side of the aisle, for every Democratic seat was occupied; the Republicans were left with only 16 members. Roosevelt had high expectations, too, for the House of Representatives, where Democrats held a 4 to 1 advantage. Time magazine reported initially that “the bill would be passed without serious difficulty.”
That prospect drove opponents of the plan to a fury of activity: protest meetings, bar association resolutions and thousands upon thousands of letters to editors. At a time when totalitarianism was on the march, Roosevelt’s foes accused him of mimicking Hitler, Mussolini and Stalin by seeking to concentrate power in the hands of one man. FDR’s supporters responded that at a time when democracy was under fire, it was vital to show the world that representative government was not hobbled by judges. That argument, however, was more subtle and harder to explain to the public.
Opponents also objected to FDR’s focus on the justices’ advanced ages. They saw it as a ruse to conceal his real, and in their eyes, nefarious objective, and as a display of gross disrespect for the elderly. One critic wrote in a letter to the Washington Post: “Between the ages of 70 and 83, Commodore Vanderbilt added one hundred million dollars to his fortune. . . . At 74 Immanuel Kant wrote his ‘Antropology,’ the ‘Metaphysics of Ethics,’ and ‘Strife of the Faculties.’ . . . Goethe at 80 completed ‘Faust.’ . . . At 98 Titian painted his historic picture of the ‘Battle of Lepanto.’ . . . Can you calculate the loss to the world if such as these had been compelled to retire at 70?”
Roosevelt’s adversaries took full advantage of the opportunity to advance their case in hearings before the Senate Judiciary Committee held in March and April 1937. “This bill obviously is not playing the game,” said Professor Erwin Griswold of HarvardLawSchool. “There are at least two ways of getting rid of judges. One is to take them out and shoot them, as they are reported to do in at least one other country. The other way is more genteel, but no less effective. They are kept on the public payroll but their votes are canceled.” The most dramatic testimony came from an unexpected participant: the Chief Justice of the United States. In a letter read by the Montana Democratic senator Burton K. Wheeler, Charles Evans Hughes blew gaping holes in the president’s claim that the court was behind in its schedule and that additional justices would improve its performance. Instead, he insisted, “There would be more judges to hear, more judges to confer, more judges to discuss, more judges to be convinced and to decide.”
Yet even after the chief justice’s powerful statement, most observers still expected Roosevelt’s proposal to be adopted. Time reported in late March that “the stanchest foes of the President’s Plan were privately conceding that, if he chose to whip it through, the necessary votes were already in his pocket.” Almost no legislator really liked FDR’s scheme, but most Democratic senators thought they could not justify to their constituents defying the immensely popular president in order to keep intact a court that had given the country every reason to suppose it would soon strike down cherished new laws, including the Social Security Act.
The court, however, would spring some surprises of its own. On March 29, by 5 to 4, in West Coast Hotel Co. v. Parrish, it validated a minimum wage law from the state of Washington, a statute essentially no different from the New York state act it had struck down only months before. As a result, a hotel in Wenatchee, Washington, would be required to pay back wages to Elsie Parrish, a chambermaid. Two weeks later, in several 5 to 4 rulings, the court sustained the National Labor Relations Act. A tribunal that in 1936 had held that coal mining, although conducted in many states, did not constitute interstate commerce, now gave so broad a reading to the Constitution that it accepted intervention by the federal government in the labor practices of a single Virginia clothing factory. On May 24, the court that in 1935 had declared that Congress, in enacting a pension law, had exceeded its powers, found the Social Security statute constitutional.