Don't Pack The Court
Reason magazine|February 2021
Joe Biden shouldn’t repeat FDR’s big mistake.
By Damon Root

On February 5, 1937, President Franklin Roosevelt made what would prove to be one of the biggest blunders of his political career. “The personnel of the Federal Judiciary is insufficient to meet the business before them,” Roosevelt announced in a special message to Congress. His plan to fix the alleged problem: Pack the courts. “A constant and systematic addition of younger blood will vitalize the courts,” FDR declared, “and better equip them to recognize and apply the essential concepts of justice in the light of the needs and the facts of an ever-changing world.”

Under the court-packing legislation that Roosevelt sent to Congress, the president would get to appoint one new federal judge for every sitting federal judge that had served at least 10 years on the bench and had failed to retire or resign within six months of reaching the age of 70. In practical terms, the bill would empower Roosevelt to completely reshape the federal judiciary, letting him name up to 44 brand new federal judges and, most important, up to six new Supreme Court justices, bringing the total in that body as high as 15.

The odds of success certainly seemed to be in the president’s favor. Not only did Roosevelt’s party control both houses of Congress at the time but it did so by an absolutely lopsided legislative majority. In the House of Representatives, the Democrats’ advantage was a staggering 4–1. And “the president had so overwhelming a majority in the upper house,” the historian William E. Leuchtenburg noted of the Senate, “that several Democrats could find seats only across the aisle in the Republican section.”

But then everything started to go wrong. Opposition to the plan rapidly mounted. What is more, the bill’s most effective adversaries turned out to be members of Roosevelt’s own party, such as the legendary progressive jurist Louis Brandeis, who deftly maneuvered behind the scenes to ensure the bill’s ultimate defeat. Like so many others at the time, Brandeis was frankly aghast at FDR’s blatant power grab. “Tell your president,” Brandeis coldly informed Roosevelt adviser Tom Corcoran after learning of the plan, “he has made a great mistake.”

Despite its many perceived advantages—a popular president recently reelected, a friendly Congress full of ostensible allies—the court-packing plan would be dead and buried in less than six months, unceremoniously entombed within the confines of the Senate Judiciary Committee, from which it would never emerge.

Eight decades later, a growing number of Democrats are ready to try again. “Should Democrats win” control of both Congress and the White House, declared New York Times columnist Jamelle Bouie in 2019, “they should expand and yes, pack, the Supreme Court....Likewise, expand and pack the entire federal judiciary to neutralize [President Donald] Trump and [Senate Majority Leader Mitch] McConnell’s attempt to cement Republican ideological preferences into the constitutional order.”

Joe Biden’s election to the White House has brought that scenario one step closer. At the time of this writing, the Democrats have a grip on the House of Representatives, while the future of the Senate remains to be decided by a pair of special elections that will be held in Georgia in January. Should the Democrats actually succeed in winning control of the upper chamber at some point in the near future, the arrival of a new court-packing scheme on Capitol Hill is within the realm of possibility.

Historians have long been fascinated by the spectacular failure of FDR’s judicial gambit. Given the unruly state of American politics today, the story of how and why his court-packing bill met its demise may hold some potent lessons for the present as well.

‘THE JUDICIAL POWER’


According to Article III, Section 1 of the U.S. Constitution, “the judicial Power of the United States, shall be vested in one Supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.” The document says nothing about the number of judges needed to fill the bench.

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