When Franklin Roosevelt Clashed with the Supreme Court – and Lost

Buoyed by his reelection but dismayed by rulings of the U.S. Supreme Court, a president overreaches

In 1936, the election-night jubilation was tempered for Franklin Delano Roosevelt by an inescapable fear—that the U.S. Supreme Court might undo his accomplishments. (Jose Fuste Raga / Corbis)
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This set of decisions came about because one justice, Owen Roberts, switched his vote. Ever since, historians have argued about why he did so. We know that he changed his mind on the validity of minimum wage laws for women before Roosevelt delivered his court-packing message, so FDR’s proposal could not have been the proximate cause. Since there is no archival evidence to account for his abrupt change on the minimum wage cases, scholars have been reduced to speculation. Perhaps, during a visit to Roberts’ country retreat in Pennsylvania, Chief Justice Hughes had warned his younger colleague that the court was placing itself in jeopardy. Perhaps Roberts was impressed by the dimensions of FDR’s landslide, which indicated that the president, not the court’s majority, spoke for the nation. Perhaps he was affected by the biting criticism from within the legal community. It is even harder to account for why Roberts, in his subsequent votes in the Wagner Act and Social Security cases, supported such a vast extension of federal power—but the pressure exerted by the court-packing bill may very likely have been influential.

Roberts’ switch had two consequences for Roosevelt, only one of them good. The president could rejoice that his program might now be safe, as indeed it was. Never again would the court strike down a New Deal law. But Roberts’ switch— and the announcement by Willis Van Devanter, one of the Four Horsemen, that he planned to retire—seriously undermined support for FDR’s court-packing bill. Why, senators asked, continue the fight after the court was rendering the kinds of decisions the president had been hoping for? Or, as one wag put it, “Why shoot the bridegroom after a shotgun wedding?” With each new ruling upholding the government, support for the legislation eroded, and by the end of May Roosevelt no longer had the votes needed to enact the measure. Washingtonians regaled one another with a reworking of an old proverb that speedily made the rounds of movers and shakers: “Aswitch in time saved nine.”

In truth, the jest was a mite too clever, for the struggle had not yet ended, but after Robert’s switch Roosevelt was never again as powerful as he had been that election night in November. On July 22, the Senate, weary of the strife, buried FDR’s bill. From the Senate floor, California’s Hiram Johnson, arms upstretched in a victory salute, looked up at the galleries and cried, “Glory be to God!”

The nasty fight over court packing turned out better than might have been expected. The defeat of the bill meant that the institutional integrity of the United States Supreme Court had been preserved—its size had not been manipulated for political or ideological ends. On the other hand, Roosevelt claimed that though he had lost the battle, he had won the war. And in an important sense he had: he had staved off the expected invalidation of the Social Security Act and other laws. More significantly, the switch in the court that spring resulted in what historians call “the constitutional revolution of 1937”—the legitimation of a greatly expanded exercise of powers by both the national and state governments that has persisted for decades.

The 168-day contest also has bequeathed some salutary lessons. It instructs presidents to think twice before tampering with the Supreme Court. FDR’s scheme, said the Senate Judiciary Committee, was “a measure which should be so emphatically rejected that its parallel will never again be presented to the free representatives of the free people of America.” And it never has been. At the same time, it teaches the justices that if they unreasonably impede the functioning of the democratic branches, they may precipitate a crisis with unpredictable consequences. In his dissent in the AAA case in 1936, Justice Stone reminded his brethren, “Courts are not the only agency of government that must be assumed to have capacity to govern.” These are lessons— for the president and for the court—as salient today as they were in 1937.

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