Don't Pack The Court

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.”