Judiciary Reorganization Bill of 1937

The Judicial Procedures Reform Bill of 1937, frequently called the court-packing plan, was a legislative initiative proposed by U.S. President

President of the United States

The President of the United States of America is the head of state and head of government of the United States. The president leads the executive branch of the federal government and is the commander-in-chief of the United States Armed Forces....

Franklin Roosevelt

Franklin D. Roosevelt

Franklin Delano Roosevelt , also known by his initials, FDR, was the 32nd President of the United States and a central figure in world events during the mid-20th century, leading the United States during a time of worldwide economic crisis and world war...

to add more justices to the U.S. Supreme Court

Supreme Court of the United States

The Supreme Court of the United States is the highest court in the United States. It has ultimate appellate jurisdiction over all state and federal courts, and original jurisdiction over a small range of cases...

. Roosevelt's purpose was to obtain favorable rulings regarding New Deal

New Deal

The New Deal was a series of economic programs implemented in the United States between 1933 and 1936. They were passed by the U.S. Congress during the first term of President Franklin D. Roosevelt. The programs were Roosevelt's responses to the Great Depression, and focused on what historians call...

legislation that had been previously ruled unconstitutional. The central and most controversial provision of the bill would have granted the President power to appoint an additional Justice to the U.S. Supreme Court, up to a maximum of six, for every sitting member over the age of 70 years and 6 months.

During Roosevelt's first term, the Supreme Court had struck down several New Deal

New Deal

measures intended to bolster economic recovery during the Great Depression

Great Depression in the United States

The Great Depression began with the Wall Street Crash of October, 1929 and rapidly spread worldwide. The market crash marked the beginning of a decade of high unemployment, poverty, low profits, deflation, plunging farm incomes, and lost opportunities for economic growth and personal advancement...

, leading to charges from New Deal supporters that a narrow majority of the court was obstructionist and political. Since the U.S. Constitution

United States Constitution

The Constitution of the United States is the supreme law of the United States of America. It is the framework for the organization of the United States government and for the relationship of the federal government with the states, citizens, and all people within the United States.The first three...

does not mandate any specific size of the Supreme Court, Roosevelt sought to counter this entrenched opposition to his political agenda by expanding the number of justices in order to create a pro-New Deal majority on the bench. Opponents viewed the legislation as an attempt to stack the court, leading to the name "Court-packing Plan".

The legislation was unveiled on February 5, 1937 and was the subject, on March 9, 1937, of one of Roosevelt's Fireside chats

Fireside chats

The fireside chats were a series of thirty evening radio addresses given by United States President Franklin D. Roosevelt between 1933 and 1944.-Origin of radio address:...

. Shortly after the radio address, on March 29, the Supreme Court published its opinion upholding a Washington state minimum wage

Minimum wage

A minimum wage is the lowest hourly, daily or monthly remuneration that employers may legally pay to workers. Equivalently, it is the lowest wage at which workers may sell their labour. Although minimum wage laws are in effect in a great many jurisdictions, there are differences of opinion about...

law in West Coast Hotel Co. v. Parrish
West Coast Hotel Co. v. Parrish
West Coast Hotel Co. v. Parrish, , was a decision by the United States Supreme Court upholding the constitutionality of minimum wage legislation enacted by the State of Washington, overturning an earlier decision in Adkins v. Children's Hospital,...

by a 5–4 ruling, after Associate Justice

Associate Justice of the Supreme Court of the United States

Associate Justices of the Supreme Court of the United States are the members of the Supreme Court of the United States other than the Chief Justice of the United States...

Owen Roberts had joined with the wing of the bench more sympathetic to the New Deal. Since Roberts had previously ruled against most New Deal legislation, his perceived about-face was widely interpreted by contemporaries as an effort to maintain the Court's judicial independence

Judicial independence

Judicial Independence is the idea that the judiciary needs to be kept away from the other branches of government...

by alleviating the political pressure to create a court more friendly to the New Deal. His move came to be known as "the switch in time that saved nine

The switch in time that saved nine

“The switch in time that saved nine” is the name given to what was perceived as the sudden jurisprudential shift by Associate Justice Owen J. Roberts of the U.S. Supreme Court in West Coast Hotel Co. v. Parrish...

." However, since Roberts's decision and vote in the Parrish case predated the introduction of the 1937 bill, this interpretation has been called into question as an anachronistic

Anachronism

An anachronism—from the Greek ανά and χρόνος — is an inconsistency in some chronological arrangement, especially a chronological misplacing of persons, events, objects, or customs in regard to each other...

"winner's history."

Roosevelt's initiative ultimately failed due to adverse public opinion, the retirement of one Supreme Court Justice, and the unexpected and sudden death of the legislation's U.S. Senate

United States Senate

The United States Senate is the upper house of the bicameral legislature of the United States, and together with the United States House of Representatives comprises the United States Congress. The composition and powers of the Senate are established in Article One of the U.S. Constitution. Each...

champion: Senate Majority Leader

Party leaders of the United States Senate

The Senate Majority and Minority Leaders are two United States Senators who are elected by the party conferences that hold the majority and the minority respectively. These leaders serve as the chief Senate spokespeople for their parties and manage and schedule the legislative and executive...

Joseph T. Robinson. It exposed the limits of Roosevelt's abilities to push forward legislation through direct public appeal and, in contrast to the tenor of his public presentations of his first-term, was seen as political maneuvering. Although circumstances ultimately allowed Roosevelt to prevail in establishing a majority on the court friendly to his New Deal agenda, some scholars have concluded that the President's victory was a pyrrhic

Pyrrhic victory

A Pyrrhic victory is a victory with such a devastating cost to the victor that it carries the implication that another such victory will ultimately cause defeat.-Origin:...

one.

New Deal

Following the Wall Street Crash of 1929

Wall Street Crash of 1929

The Wall Street Crash of 1929 , also known as the Great Crash, and the Stock Market Crash of 1929, was the most devastating stock market crash in the history of the United States, taking into consideration the full extent and duration of its fallout...

, the onset of the Great Depression

Great Depression

The Great Depression was a severe worldwide economic depression in the decade preceding World War II. The timing of the Great Depression varied across nations, but in most countries it started in about 1929 and lasted until the late 1930s or early 1940s...

and the inability of the Hoover administration

Herbert Hoover

Herbert Clark Hoover was the 31st President of the United States . Hoover was originally a professional mining engineer and author. As the United States Secretary of Commerce in the 1920s under Presidents Warren Harding and Calvin Coolidge, he promoted partnerships between government and business...

to respond to the financial crisis, Franklin Delano Roosevelt

Franklin D. Roosevelt

won the 1932 presidential election

United States presidential election, 1932

The United States presidential election of 1932 took place as the effects of the Wall Street Crash of 1929, the Smoot-Hawley Tariff Act of 1930, the Revenue Act of 1932, and the Great Depression were being felt intensely across the country. President Herbert Hoover's popularity was falling as...

on a promise to give America a "New Deal

New Deal

" to promote national economic recovery. The 1932 election also saw a new Democratic

Democratic Party (United States)

The Democratic Party is one of two major contemporary political parties in the United States, along with the Republican Party. The party's socially liberal and progressive platform is largely considered center-left in the U.S. political spectrum. The party has the lengthiest record of continuous...

majority sweep into both houses of Congress, giving Roosevelt legislative support for his reform platform. Both Roosevelt and the 73rd Congress

73rd United States Congress

The Seventy-third United States Congress was a meeting of the legislative branch of the United States federal government, composed of the United States Senate and the United States House of Representatives. It met in Washington, DC from March 4, 1933 to January 3, 1935, during the first two years...

called for greater governmental involvement in the economy as a way to end the depression. During the president's first term, a series of successful constitutional challenges to various New Deal programs were launched in federal courts.

A minor aspect of Roosevelt's New Deal agenda may have itself directly precipitated the showdown between the Roosevelt administration and the Supreme Court

Supreme Court of the United States

. Shortly after Roosevelt's inauguration, Congress passed the Economy Act

Economy Act

The Economy Act of 1933, officially titled the Act of March 20, 1933 , is an Act of Congress that cut the salaries of federal workers and reduced benefit payments to veterans, moves intended to reduce the federal deficit in the United States....

, a provision of which cut many government salaries, including the pensions of retired Supreme Court justices. Associate Justice

Associate Justice of the Supreme Court of the United States

Associate Justices of the Supreme Court of the United States are the members of the Supreme Court of the United States other than the Chief Justice of the United States...

Oliver Wendell Holmes, Jr.

Oliver Wendell Holmes, Jr. was an American jurist who served as an Associate Justice of the Supreme Court of the United States from 1902 to 1932...

, who had retired in 1932, saw his pension halved from $20,000 to $10,000 per year; Holmes originally had his pension halved in 1932, but Congress had temporarily restored it to $20,000.00 per year in February of 1933. The serious cut to pensions appears to have dissuaded at least two older Justices, Willis Van Devanter

Willis Van Devanter

Willis Van Devanter was an Associate Justice of the United States Supreme Court, January 3, 1911 to June 2, 1937.- Early life and career :...

and George Sutherland

George Sutherland

Alexander George Sutherland was an English-born U.S. jurist and political figure. One of four appointments to the Supreme Court by President Warren G. Harding, he served as an Associate Justice of the U.S...

, from retirement. Both would later find many aspects of the New Deal unconstitutional.

Roosevelt's Justice Department

The flurry of new law in the wake of Roosevelt's first hundred days swamped the Justice Department with more responsibilities than it could manage. Many Justice Department lawyers were ideologically opposed to the New Deal and failed to influence either the drafting or review of much of the White House's New Deal legislation. The ensuing struggle over ideological identity increased the ineffectiveness of the Justice Department. As Interior Secretary

United States Secretary of the Interior

The United States Secretary of the Interior is the head of the United States Department of the Interior.The US Department of the Interior should not be confused with the concept of Ministries of the Interior as used in other countries...

Harold Ickes

Harold L. Ickes

Harold LeClair Ickes was a United States administrator and politician. He served as United States Secretary of the Interior for 13 years, from 1933 to 1946, the longest tenure of anyone to hold the office, and the second longest serving Cabinet member in U.S. history next to James Wilson. Ickes...

complained, Attorney General

United States Attorney General

The United States Attorney General is the head of the United States Department of Justice concerned with legal affairs and is the chief law enforcement officer of the United States government. The attorney general is considered to be the chief lawyer of the U.S. government...

Homer Cummings

Homer Stille Cummings

Homer Stille Cummings was a U.S. political figure who was United States Attorney General from 1933 to 1939. He also was elected mayor of Stamford, Connecticut, three times before, founding the legal firm of Cummings & Lockwood in 1909...

had "simply loaded it [the Justice Department] with political appointees" at a time when it would be responsible for litigating the flood of cases arising from New Deal legal challenges.

Compounding matters, Roosevelt's congenial Solicitor General

United States Solicitor General

The United States Solicitor General is the person appointed to represent the federal government of the United States before the Supreme Court of the United States. The current Solicitor General, Donald B. Verrilli, Jr. was confirmed by the United States Senate on June 6, 2011 and sworn in on June...

, James Crawford Biggs

James Crawford Biggs

James Crawford Biggs was born in Oxford, North Carolina, on August 29, 1872, to William and Elizabeth Arlington Biggs. Biggs was a student at the Horner Military School in Oxford from 1883-1887 before attending the University of North Carolina at Chapel Hill. He graduated Summa Cum Laude from the...

(a patronage

Patronage

Patronage is the support, encouragement, privilege, or financial aid that an organization or individual bestows to another. In the history of art, arts patronage refers to the support that kings or popes have provided to musicians, painters, and sculptors...

appointment chosen by Cummings), proved to be an ineffective advocate for the legislative initiatives of the New Deal. While Biggs resigned in early 1935, his successor Stanley Forman Reed

Stanley Forman Reed

Stanley Forman Reed was a noted American attorney who served as United States Solicitor General from 1935 to 1938 and as an Associate Justice of the U.S. Supreme Court from 1938 to 1957. He was the last Supreme Court Justice who did not graduate from law school Stanley Forman Reed (December 31,...

proved to be little better.

This disarray at the Justice Department meant that the government's lawyers often failed to foster viable test cases and arguments for their defense, subsequently handicapping them before the courts. As Chief Justice

Chief Justice of the United States

The Chief Justice of the United States is the head of the United States federal court system and the chief judge of the Supreme Court of the United States. The Chief Justice is one of nine Supreme Court justices; the other eight are the Associate Justices of the Supreme Court of the United States...

Charles Evans Hughes

Charles Evans Hughes, Sr. was an American statesman, lawyer and Republican politician from New York. He served as the 36th Governor of New York , Associate Justice of the Supreme Court of the United States , United States Secretary of State , a judge on the Court of International Justice , and...

would later note, it was because much of the New Deal legislation was so poorly drafted and defended that the court did not uphold it.

Jurisprudential debate

Modern popular histories cast the membership of the Hughes Court as aligned with—and in light of—modern political ideologies: Pierce Butler

Pierce Butler (justice)

Pierce Butler was an American jurist who served as an Associate Justice of the Supreme Court of the United States from 1923 until his death in 1939...

, James Clark McReynolds

James Clark McReynolds

James Clark McReynolds was an American lawyer and judge who served as United States Attorney General under President Woodrow Wilson and as an Associate Justice of the United States Supreme Court...

, George Sutherland

George Sutherland

and Willis Van Devanter

Willis Van Devanter

Willis Van Devanter was an Associate Justice of the United States Supreme Court, January 3, 1911 to June 2, 1937.- Early life and career :...

(collectively called "The Four Horsemen

Four Horsemen (Supreme Court)

The "Four Horsemen" was the nickname given by the press to four conservative members of the United States Supreme Court during the 1932–1937 terms, who opposed the New Deal agenda of President Franklin Roosevelt. They were Justices Pierce Butler, James Clark McReynolds, George Sutherland,...

") are deemed "conservative", meanwhile Louis Brandeis

Louis Brandeis

Louis Dembitz Brandeis ; November 13, 1856 – October 5, 1941) was an Associate Justice on the Supreme Court of the United States from 1916 to 1939.He was born in Louisville, Kentucky, to Jewish immigrant parents who raised him in a secular mode...

, Benjamin Cardozo and Harlan Fiske Stone

Harlan Fiske Stone

Harlan Fiske Stone was an American lawyer and jurist. A native of New Hampshire, he served as the dean of Columbia Law School, his alma mater, in the early 20th century. As a member of the Republican Party, he was appointed as the 52nd Attorney General of the United States before becoming an...

(dubbed "The Three Musketeers") are portrayed as "liberals" politically opposed to the Horsemen; finally, Chief Justice Charles Evans Hughes

Charles Evans Hughes

and Owen Roberts, were regarded as swing voters. It is true that in many of their rulings the Supreme Court of the 1930s was deeply divided: four justices on each side, with Justice Roberts as the typical swing vote. However, the ideological divide between a so-called progressive and reactionary wing is misleading insofar as these terms suggest political and not jurisprudential differences. More recent scholarship has focused on the larger debate in U.S. jurisprudence regarding the role of the judiciary, the meaning of the Constitution, and the respective rights and prerogatives of the different branches of government in shaping the judicial outlook of the Court.

The clash over the constitutionality of the New Deal initiatives was thus tied to divergent legal philosophies gradually coming into competition with each other: legal formalism

Legal formalism

Legal formalism is a legal positivist view in philosophy of law and jurisprudence. While Jeremy Bentham's can be seen as appertaining to the legislature, legal formalism appertains to the Judge; that is, formalism does not suggest that the substantive justice of a law is irrelevant, but rather,...

and legal realism

Legal realism

Legal realism is a school of legal philosophy that is generally associated with the culmination of the early-twentieth century attack on the orthodox claims of late-nineteenth-century classical legal thought in the United States...

. During the period ca. 1900 – ca. 1920, the formalist and realist camps clashed over the nature and legitimacy of judicial authority in common law

Common law

Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...

, given the lack of a central, governing authority in those legal fields other than the precedent established by case law

Case law

In law, case law is the set of reported judicial decisions of selected appellate courts and other courts of first instance which make new interpretations of the law and, therefore, can be cited as precedents in a process known as stare decisis...

—i.e., the aggregate of earlier judicial decisions.

This debate spilled over into the realm of constitutional law

Constitutional law

Constitutional law is the body of law which defines the relationship of different entities within a state, namely, the executive, the legislature and the judiciary....

. Realist legal scholars and judges argued that the constitution should be interpreted flexibly and judges should not use the Constitution to impede legislative experimentation. One of the most famous proponents of this concept, known as the Living Constitution

Living Constitution

The Living Constitution is a concept in America, also referred to as loose constructionism, constitutional interpretation which claims that the Constitution has a dynamic meaning or that it has the properties of a human in the sense that it changes...

, was U.S. Supreme Court justice Oliver Wendell Holmes, Jr.

Oliver Wendell Holmes, Jr.

Oliver Wendell Holmes, Jr. was an American jurist who served as an Associate Justice of the Supreme Court of the United States from 1902 to 1932...

, who said in Missouri v. Holland
Missouri v. Holland
Missouri v. Holland, 252 U.S. 416 , the United States Supreme Court held that protection of its quasi-sovereign right to regulate the taking of game is a sufficient jurisdictional basis, apart from any pecuniary interest, for a bill by a State to enjoin enforcement of federal regulations over the...

the "case before us must be considered in the light of our whole experience and not merely in that of what was said a hundred years ago". The conflict between formalists and realists implicated a changing but still-persistent view of constitutional jurisprudence

Jurisprudence

Jurisprudence is the theory and philosophy of law. Scholars of jurisprudence, or legal theorists , hope to obtain a deeper understanding of the nature of law, of legal reasoning, legal systems and of legal institutions...

which viewed the U.S. Constitution as a static, universal, and general document not designed to change over time. Under this judicial philosophy, case resolution required a simple restatement of the applicable principles which were then extended to a case's facts in order to resolve the controversy. This earlier judicial attitude came into direct conflict with the legislative reach of much of Roosevelt's New Deal legislation. Examples of these judicial principles include:

the early-American fear of centralized authority which necessitated an unequivocal distinction between national powers and reserved state powers;
the clear delineation between public and private spheres of commercial activity susceptible to legislative regulation; and
the corresponding separation of public and private contractual interactions based upon "free labor" ideology and Lockean
John Locke
John Locke FRS , widely known as the Father of Liberalism, was an English philosopher and physician regarded as one of the most influential of Enlightenment thinkers. Considered one of the first of the British empiricists, following the tradition of Francis Bacon, he is equally important to social...

property rights
Property
Property is any physical or intangible entity that is owned by a person or jointly by a group of people or a legal entity like a corporation...

.

At the same time, developing modernist

Modernism

Modernism, in its broadest definition, is modern thought, character, or practice. More specifically, the term describes the modernist movement, its set of cultural tendencies and array of associated cultural movements, originally arising from wide-scale and far-reaching changes to Western society...

ideas regarding politics and the role of government placed the role of the judiciary into flux. The courts were generally moving away from what has been called "guardian review" — in which judges defended the line between appropriate legislative advances and majoritarian encroachments into the private sphere of life — toward a position of "bifurcated review". This approach favored sorting laws into categories that demanded deference towards other branches of government in the economic sphere, but aggressively heightened judicial scrutiny with respect to fundamental civil and political liberties. The slow transformation away from the "guardian review" role of the judiciary brought about the ideological—and, to a degree, generational—rift in the 1930s judiciary. With the Judiciary Bill, Roosevelt sought to accelerate this judicial evolution by diminishing the dominance of an older generation of judges who remained attached to an earlier mode of American jurisprudence.

The New Deal goes to court

Roosevelt

Franklin D. Roosevelt

was wary of the Supreme Court

Supreme Court of the United States

early in his first term, and his administration was slow to bring constitutional challenges of New Deal

New Deal

legislation before the court. However, early wins for New Deal supporters came in Home Building & Loan Association v. Blaisdell
Home Building & Loan Association v. Blaisdell
Home Building & Loan Association v. Blaisdell, 290 U.S. 398 , was a decision of the United States Supreme Court holding that Minnesota's suspension of creditor's remedies was not in violation of the United States Constitution. Blaisdell was decided during the height of the Great Depression and has...

and Nebbia v. New York
Nebbia v. New York
Nebbia v. New York, 291 U.S. 502 , was a case in which the Supreme Court of the United States determined whether the state of New York could regulate the price of milk for dairy farmers, dealers, and retailers....

at the start of 1934. At issue in each case were state laws relating to economic regulation. Blaisdell concerned the temporary suspension of creditor

Creditor

A creditor is a party that has a claim to the services of a second party. It is a person or institution to whom money is owed. The first party, in general, has provided some property or service to the second party under the assumption that the second party will return an equivalent property or...

's remedies

Legal remedy

A legal remedy is the means with which a court of law, usually in the exercise of civil law jurisdiction, enforces a right, imposes a penalty, or makes some other court order to impose its will....

by Minnesota

Minnesota

Minnesota is a U.S. state located in the Midwestern United States. The twelfth largest state of the U.S., it is the twenty-first most populous, with 5.3 million residents. Minnesota was carved out of the eastern half of the Minnesota Territory and admitted to the Union as the thirty-second state...

in order to combat mortgage

Mortgage loan

A mortgage loan is a loan secured by real property through the use of a mortgage note which evidences the existence of the loan and the encumbrance of that realty through the granting of a mortgage which secures the loan...

foreclosure

Foreclosure

Foreclosure is the legal process by which a mortgage lender , or other lien holder, obtains a termination of a mortgage borrower 's equitable right of redemption, either by court order or by operation of law...

s, finding that temporal relief did not, in fact, impair the obligation of a contract

Contract

A contract is an agreement entered into by two parties or more with the intention of creating a legal obligation, which may have elements in writing. Contracts can be made orally. The remedy for breach of contract can be "damages" or compensation of money. In equity, the remedy can be specific...

. Nebbia held that New York

New York

New York is a state in the Northeastern region of the United States. It is the nation's third most populous state. New York is bordered by New Jersey and Pennsylvania to the south, and by Connecticut, Massachusetts and Vermont to the east...

could implement price controls

Price controls

Price controls are governmental impositions on the prices charged for goods and services in a market, usually intended to maintain the affordability of staple foods and goods, and to prevent price gouging during shortages, or, alternatively, to insure an income for providers of certain goods...

on milk

Milk

Milk is a white liquid produced by the mammary glands of mammals. It is the primary source of nutrition for young mammals before they are able to digest other types of food. Early-lactation milk contains colostrum, which carries the mother's antibodies to the baby and can reduce the risk of many...

, in accordance with the state's police power. While not tests of New Deal legislation themselves, the cases gave cause for relief of administration concerns about Associate Justice

Associate Justice of the Supreme Court of the United States

Associate Justices of the Supreme Court of the United States are the members of the Supreme Court of the United States other than the Chief Justice of the United States...

Owen Roberts, who voted with the majority in both cases. Roberts's opinion for the court in Nebbia was also encouraging for the administration:
Nebbia also holds a particular significance: it was the one case in which the Court abandoned its jurisprudential distinction between the "public" and "private" spheres of economic activity, an essential distinction in the court's analysis of state police power. The effect of this decision radiated outward, affecting other doctrinal methods of analysis in wage regulation, labor, and the power of the U.S. Congress to regulate commerce.

Panama Refining Co. v. Ryan

The first major test of New Deal legislation came in Panama Refining Co. v. Ryan
Panama Refining Co. v. Ryan
Panama Refining Co. v. Ryan, 293 U.S. 388 , also known as the Hot Oil case, was a case in which the United States Supreme Court ruled unconstitutional the Roosevelt Administration's prohibition of interstate and foreign trade in petroleum goods produced in excess of state quotas—the "hot oil"...

, announced January 7, 1935. Contested in this case was the National Industrial Recovery Act

National Industrial Recovery Act

The National Industrial Recovery Act , officially known as the Act of June 16, 1933 The National Industrial Recovery Act (NIRA), officially known as the Act of June 16, 1933 The National Industrial Recovery Act (NIRA), officially known as the Act of June 16, 1933 (Ch. 90, 48 Stat. 195, formerly...

, Section 9(c), in which Congress

United States Congress

The United States Congress is the bicameral legislature of the federal government of the United States, consisting of the Senate and the House of Representatives. The Congress meets in the United States Capitol in Washington, D.C....

had delegated to the President

President of the United States

authority "to prohibit the transportation in interstate and foreign commerce of petroleum ... produced or withdrawn from storage in excess of the amount permitted ... by any State law". The NIRA passed in June 1933, and Roosevelt moved quickly to file executive orders to regulate the oil industry. Two small, independent oil producers, Panama Refining Co. and Amazon Petroleum Co. filed suit seeking an injunction to halt enforcement, arguing that the law exceeded Congress's interstate commerce power and improperly delegated authority to the President.

The Supreme Court, through an 8-1 margin, agreed with the oil companies, finding that Congress had inappropriately delegated its regulatory power without both a clear statement of policy and the establishment of a specific set of standards by which the President was empowered to act. Although somewhat of a loss for the Roosevelt administration and New Deal supporters, it was mitigated by the narrowness of the court's opinion, which did not deny Congress's authority to regulate interstate oil commerce. Chief Justice

Chief Justice of the United States

Hughes

Charles Evans Hughes

, who wrote the majority opinion, indicated that the law was just poorly worded and that Congress could resolve the unconstitutional provisions of the Act by simply adding procedural safeguards, hence the Connally Hot Oil Act of 1935

Connally Hot Oil Act of 1935

The Connally Hot Oil Act of 1935 was enacted in the wake of the Supreme Court's decision to strike down Section 9 of the National Industrial Recovery Act in Panama Refining Co. v. Ryan, which gave the President authority "to prohibit the transportation in interstate and foreign commerce of...

was passed into law.

Gold Clause Cases

Economic regulation again appeared before the Supreme Court in the Gold Clause Cases
Gold Clause Cases
The Gold Clause Cases were a series of actions brought before the Supreme Court of the United States, in which the court narrowly upheld restrictions on the ownership of gold implemented by the administration of U.S. President Franklin D. Roosevelt in order to fight the Great Depression. The cases...

. In his first week after taking office, Roosevelt closed the nation's banks

Emergency Banking Act

The Emergency Banking Act was an act of the United States Congress spearheaded by President Franklin D. Roosevelt during the Great Depression. It was passed on March 9, 1933...

, acting from fears that gold hoarding and international speculation posed a danger to the national monetary system. He based his actions on the Trading with the Enemy Act

Trading with the Enemy Act

The Trading with the Enemy Act, sometimes abbreviated as TWEA, is a United States federal law, , enacted in 1917 to restrict trade with countries hostile to the United States. The law gives the President the power to oversee or restrict any and all trade between the U.S. and its enemies in times of...

of 1917. Congress quickly ratified Roosevelt's action with the Emergency Banking Act

Emergency Banking Act

The Emergency Banking Act was an act of the United States Congress spearheaded by President Franklin D. Roosevelt during the Great Depression. It was passed on March 9, 1933...

. A month later, the President issued Executive Order 6102

Executive Order 6102

Executive Order 6102 is an Executive Order signed on April 5, 1933, by U.S. President Franklin D. Roosevelt "forbidding the Hoarding of Gold Coin, Gold Bullion, and Gold Certificates within the continental United States"...

, confiscating all gold coins, bullion, and certificates, requiring they be surrendered to the government by May 1, 1933 in exchange for currency. Congress also passed a joint resolution cancelling all gold clauses in public and private contracts, stating such clauses interfered with its power to regulate U.S. currency.

While the Roosevelt administration waited for the court to return its judgment, contingency plans were made for an unfavorable ruling. Ideas circulated within the White House to withdraw the right to sue the government to enforce gold clauses. Attorney General

United States Attorney General

Cummings

Homer Stille Cummings

suggested the court should be immediately packed to ensure a favorable ruling. Roosevelt himself ordered the Treasury

United States Department of the Treasury

The Department of the Treasury is an executive department and the treasury of the United States federal government. It was established by an Act of Congress in 1789 to manage government revenue...

to manipulate the market to give the impression of turmoil, although Treasury Secretary

United States Secretary of the Treasury

The Secretary of the Treasury of the United States is the head of the United States Department of the Treasury, which is concerned with financial and monetary matters, and, until 2003, also with some issues of national security and defense. This position in the Federal Government of the United...

Henry Morgenthau

Henry Morgenthau, Jr.

Henry Morgenthau, Jr. was the U.S. Secretary of the Treasury during the administration of Franklin D. Roosevelt. He played a major role in designing and financing the New Deal...

refused. Roosevelt also drew up executive orders to close all stock exchanges and prepared a radio address to the public.

On February 18, 1935, the Justices' decisions in all three cases were announced; all supported the government's position by a narrow 5–4 majority. Chief Justice Hughes wrote the opinion for each case, finding the government had plenary power to regulate money. As such, the abrogation of both private and public contractual gold clauses was within congressional reach when such clauses represented a threat to Congress's control of the monetary system. Speaking for the Court in the Perry case, Hughes's opinion was remarkable: in a judicial tongue-lashing not seen since Marbury v. Madison
Marbury v. Madison
Marbury v. Madison, is a landmark case in United States law and in the history of law worldwide. It formed the basis for the exercise of judicial review in the United States under Article III of the Constitution. It was also the first time in Western history a court invalidated a law by declaring...

, Hughes chided Congress for an act which, while legal, was regarded as clearly immoral. However, Hughes ultimately found the plaintiff had no cause of action

Cause of action

In the law, a cause of action is a set of facts sufficient to justify a right to sue to obtain money, property, or the enforcement of a right against another party. The term also refers to the legal theory upon which a plaintiff brings suit...

, and thus no standing

Standing (law)

In law, standing or locus standi is the term for the ability of a party to demonstrate to the court sufficient connection to and harm from the law or action challenged to support that party's participation in the case...

to sue the government.

Railroad Retirement Board v. Alton Railroad Co.

While not itself a part of the New Deal, the Roosevelt administration kept a close eye on the challenge to the 1934 Railroad Retirement Act, Railroad Retirement Board
Railroad Retirement Board
The U.S. Railroad Retirement Board is an independent agency in the executive branch of the United States government created in 1935 to administer a social insurance program providing retirement benefits to the country's railroad workers....

v. Alton Railroad
Alton Railroad
The Alton Railroad was the final name of a railroad linking Chicago to Alton, Illinois, St. Louis, Missouri, and Kansas City, Missouri. Its predecessor, the Chicago and Alton Railroad , was purchased by the Baltimore and Ohio Railroad in 1931 and was controlled until 1942 when the Alton was...

Co.. Its similarity with the Social Security Act meant the test of the railroad pension regime would serve as an indicator of whether Roosevelt's ambitious retirement program would be found constitutional. The railroad pension was designed to encourage older rail workers to retire, thereby creating jobs for younger railroaders desperately in need of work, although ostensibly Congress passed the act on the grounds that it would increase safety on the country's railways.

Numerous challenges to the law were filed in the Supreme Court of the District of Columbia

United States District Court for the District of Columbia

The United States District Court for the District of Columbia is a federal district court. Appeals from the District are taken to the United States Court of Appeals for the District of Columbia Circuit The United States District Court for the District of Columbia (in case citations, D.D.C.) is a...

, and injunctions were issued on the grounds that the law was an unconstitutional regulation of an activity not connected to interstate commerce. The Supreme Court took the case without waiting for an appeal to the District of Columbia Court of Appeals

District of Columbia Court of Appeals

The District of Columbia Court of Appeals is the highest court of the District of Columbia. Established by the United States Congress in 1970, it is equivalent to a state supreme court, except that its power derives from Article I of the U.S. Constitution rather than from the inherent sovereignty...

.

On May 6, 1935, Justice Roberts's 5–4 opinion for the Court rejected the government's position, dismissing the purported effect on railway safety as "without support in reason or common sense". Further, Roberts took issue with a provision of the act which awarded pension computation credit to former rail workers, regardless of when they had last worked in the industry. Roberts characterized the provision as "a naked appropriation of private property" — taking the belongings "of one and bestowing it upon another" — and a violation of the Due Process Clause

Due process

Due process is the legal code that the state must venerate all of the legal rights that are owed to a person under the principle. Due process balances the power of the state law of the land and thus protects individual persons from it...

of the Fifth Amendment

Fifth Amendment to the United States Constitution

The Fifth Amendment to the United States Constitution, which is part of the Bill of Rights, protects against abuse of government authority in a legal procedure. Its guarantees stem from English common law which traces back to the Magna Carta in 1215...

Black Monday

Just three weeks after its defeat in the railroad pension case, the Roosevelt administration suffered its most severe setback, on May 27, 1935: "Black Monday". Chief Justice

Chief Justice of the United States

Hughes

Charles Evans Hughes

arranged for the decisions announced from the bench that day to be read in order of increasing importance. The Supreme Court ruled unanimously against Roosevelt in three cases

Humphrey's Executor v. United States

The first of the three read out was Humphrey's Executor v. United States
Humphrey's Executor v. United States
Humphrey's Executor v. United States, , was a United States Supreme Court case decided during the Franklin Delano Roosevelt presidency, regarding the powers that a President of the United States has to remove certain executive officials of a "quasi-legislative," "quasi-judicial" administrative body...

. After taking office, President Roosevelt came to believe that William Humphrey, a Republican

Republican Party (United States)

The Republican Party is one of the two major contemporary political parties in the United States, along with the Democratic Party. Founded by anti-slavery expansion activists in 1854, it is often called the GOP . The party's platform generally reflects American conservatism in the U.S...

appointed to a six-year term on the Federal Trade Commission

Federal Trade Commission

The Federal Trade Commission is an independent agency of the United States government, established in 1914 by the Federal Trade Commission Act...

(FTC) in 1931, was at odds with the administration's New Deal

New Deal

initiatives. Writing to request Humphrey's resignation from the FTC in August 1933, Roosevelt openly admitted his reason for seeking his removal: "I did not feel that your mind and my mind go along together." This proved to be a blunder on Roosevelt's part. When Humphrey could not be persuaded to resign, Roosevelt dismissed him from office on October 7."

Humphrey promptly filed suit to return to his appointed office and to collect backpay. The basis for his suit was the 1914 Federal Trade Commission Act

Federal Trade Commission Act

The Federal Trade Commission Act of 1914 started the Federal Trade Commission , a bipartisan body of five members appointed by the president of the United States for seven-year terms. This commission was authorized to issue “cease and desist” orders to large corporations to curb unfair trade...

, which specified that the President was only authorized to remove a FTC commissioner "for inefficiency, neglect of duty, or malfeasance in office". Humphrey died on February 14, 1934 and his suit was carried on by his wife — as executor of his estate — for backpay up to the date of his death (with interest).

Associate Justice

Associate Justice of the Supreme Court of the United States

Associate Justices of the Supreme Court of the United States are the members of the Supreme Court of the United States other than the Chief Justice of the United States...

George Sutherland

read the court's opinion, holding that Roosevelt

Franklin D. Roosevelt

had indeed acted outside of his authority when he fired Humphrey from the FTC, stating that Congress

United States Congress

had intended regulatory commissions such as the FTC to be independent of executive influence.

Louisville Joint Stock Land Bank v. Radford

Next announced was Louisville Joint Stock Land Bank v. Radford
Louisville Joint Stock Land Bank v. Radford
Louisville Joint Stock Land Bank v. Radford, 295 U.S. 555 , was a decision by the Supreme Court of the United States that ruled the Frazier-Lemke Act unconstitutional in violation of the Fifth Amendment...

. The 1934 Frazier-Lemke Farm Bankruptcy Act was designed to give aid to debt-ridden farmers, allowing them to reacquire farms they had lost from foreclosure, or to petition the Bankruptcy Court within their district to suspend foreclosure proceedings. The legislation's ultimate goal was to help those farmers scale down their mortgages.

The opinion of the court, read by Justice Louis Brandeis

Louis Brandeis

, struck down the act on Fifth Amendment

Fifth Amendment to the United States Constitution

Takings Clause grounds. The court found the act stripped the creditor of property which was held before the passage of the act, without any form of compensation, and bestowed the property upon the debtor. Further, the act allowed the debtor to remain on the mortgaged property for up to five years after declaring bankruptcy, giving the creditor no opportunity to foreclose immediately. While the states could not impair contract obligations, the federal government could—but it could not take property in such a manner without compensating the creditor.

Schechter Poultry Corp. v. United States

The final blow for the President on Black Monday fell with the reading of Schechter Poultry Corp. v. United States
Schechter Poultry Corp. v. United States
A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495 , was a decision by the Supreme Court of the United States that invalidated regulations of the poultry industry according to the nondelegation doctrine and as an invalid use of Congress's power under the commerce clause...

, which revisited the National Industrial Recovery Act

National Industrial Recovery Act

, invalidating the NIRA in its entirety.

Under Section 3 of the NIRA, the President had promulgated the Live Poultry Code to regulate the New York poultry market. The Schechter brothers had been charged with criminal violations of the code and were convicted, whereupon they appealed on grounds that the NIRA was an unconstitutional delegation of legislative power to the executive, the NIRA sought to regulate business which was not engaged in interstate commerce, and that certain sections violated the Fifth Amendment

Fifth Amendment to the United States Constitution

Due Process Clause

Due process

.

Chief Justice Hughes delivered the opinion of the unanimous court, holding that Congress had delegated too much lawmaking authority to the President without any clear guidelines or standards. Section 3 granted either trade associations or the President authority to draft "codes of fair competition", which amounted to a capitulation of congressional legislative authority. The arrangement presented the danger that private entities, and not government officials, could engage in creating codes of law enforceable upon the public. Justice Benjamin Cardozo, who had been the lone dissent in the similar Panama case, agreed with the majority. In his concurring opinion, Cardozo described Section 3 as "delegation run riot".

Hughes also renewed an old method of jurispudence concerning the "current of commerce" theory of the Commerce Clause

Commerce Clause

The Commerce Clause is an enumerated power listed in the United States Constitution . The clause states that the United States Congress shall have power "To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes." Courts and commentators have tended to...

as expounded by Oliver Wendell Holmes, Jr.

Oliver Wendell Holmes, Jr.

Oliver Wendell Holmes, Jr. was an American jurist who served as an Associate Justice of the Supreme Court of the United States from 1902 to 1932...

in Swift v. United States. Hughes determined the poultry at issue in the case, though purchased for slaughter interstate, were not intended for any further interstate transactions after Schecter slaughtered them. Thus, the poultry were outside of Congress's authoritative reach unless Schecter's business had a direct and logical connection to interestate commerce, per the Shreveport Rate Case. Hughes used a direct/indirect effect analysis to determine the Schechters' business was not within the reach of congressional regulation.

Roosevelt reacts

Upon learning of the unanimity of the three court decisions, Roosevelt became distressed and irritable, regarding the opinions as personal attacks. The Supreme Court's decision in Humphrey's Ex. particularly stunned the administration. Only nine years earlier, in Myers v. United States
Myers v. United States
Myers v. United States, , was a United States Supreme Court decision ruling that the President has the exclusive power to remove executive branch officials, and does not need the approval of the Senate or any other legislative body....

, the Taft Court

William Howard Taft

William Howard Taft was the 27th President of the United States and later the tenth Chief Justice of the United States...

had held the President's power to remove executive officials was plenary. Roosevelt and his entourage viewed Sutherland's particularly vicious criticism as an attempt to publicly shame the President and paint him as having purposefully violated the Constitution

United States Constitution

.

After the decisions came down, Roosevelt remarked at a May 31 press conference that the Schechter decision had "relegated [the nation] to a horse and buggy definition of interstate commerce". The comment lit a fire under the media and indignated the public. Scorned for the perceived attack on the court, Roosevelt assumed a diplomatic silence toward the court and waited for a better opportunity to press his cause with the public.

Further setbacks

With several cases laying forth the criteria necessary to respect the due process

Due process

and property

Property

Property is any physical or intangible entity that is owned by a person or jointly by a group of people or a legal entity like a corporation...

right

Right

Rights are legal, social, or ethical principles of freedom or entitlement; that is, rights are the fundamental normative rules about what is allowed of people or owed to people, according to some legal system, social convention, or ethical theory...

s of individuals, and statements of what constituted an appropriate delegation of legislative powers to the President

President of the United States

, Congress

United States Congress

quickly revised the Agricultural Adjustment Act

Agricultural Adjustment Act

The Agricultural Adjustment Act was a United States federal law of the New Deal era which restricted agricultural production by paying farmers subsidies not to plant part of their land and to kill off excess livestock...

(AAA). However, New Deal supporters still wondered how the AAA would fare against Chief Justice

Chief Justice of the United States

Hughes's

Charles Evans Hughes

restrictive view of the Commerce Clause

Commerce Clause

from the Schechter
Schechter Poultry Corp. v. United States
A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495 , was a decision by the Supreme Court of the United States that invalidated regulations of the poultry industry according to the nondelegation doctrine and as an invalid use of Congress's power under the commerce clause...

decision.

United States v. Butler

The AAA received its trial in the case of United States v. Butler
United States v. Butler
United States v. Butler, , was a case in which the Supreme Court of the United States ruled that the processing taxes instituted under the 1933 Agricultural Adjustment Act were unconstitutional...

, announced January 6, 1936. The AAA had created an agricultural regulatory program with a supporting processing tax; the revenue raised was then specifically used to pay farmers to reduce their acreage and production, which would in turn reduce surplus harvest yields and increase prices. Officials of the Hoosac Mills Corp. argued that the AAA was as unconstitutional as the National Industrial Recovery Act

National Industrial Recovery Act

, attempting to regulate activity not in interstate commerce. Specifically attacked was the use of Congress's Taxing and Spending power

Taxing and Spending Clause

Article I, Section 8, Clause 1 of the United States Constitution, is known as the Taxing and Spending Clause. It is the clause that gives the federal government of the United States its power of taxation...

undergirding the program. On January 6, 1936, the Supreme Court ruled the AAA unconstitutional by a 6-3 margin.

Associate Justice

Associate Justice of the Supreme Court of the United States

Associate Justices of the Supreme Court of the United States are the members of the Supreme Court of the United States other than the Chief Justice of the United States...

Roberts again delivered the opinion of a divided court, agreeing with those challenging the tax. Regarding agriculture as an essentially local activity, the court invalidated the AAA as a violation of the powers reserved to the states under the Tenth Amendment

Tenth Amendment to the United States Constitution

The Tenth Amendment to the United States Constitution, which is part of the Bill of Rights, was ratified on December 15, 1791...

. The court also used the occasion to settle a dispute over the General Welfare Clause stemming back to the administration of George Washington

George Washington

George Washington was the dominant military and political leader of the new United States of America from 1775 to 1799. He led the American victory over Great Britain in the American Revolutionary War as commander-in-chief of the Continental Army from 1775 to 1783, and presided over the writing of...

, holding Congress possessed a power to tax and spend for the general welfare.

Carter v. Carter Coal Co.

Following the undoing of the National Recovery Administration

National Recovery Administration

The National Recovery Administration was the primary New Deal agency established by U.S. president Franklin D. Roosevelt in 1933. The goal was to eliminate "cut-throat competition" by bringing industry, labor and government together to create codes of "fair practices" and set prices...

by the Schechter decision, Congress attempted to salvage the coal industry code promulgated under the National Industrial Recovery Act

National Industrial Recovery Act

in the Bituminous Coal Conservation Act of 1935. The act, closely following the criteria of the Schechter ruling, declared a public interest in coal production and found it so integrated into interstate commerce as to warrant federal regulation. The code subjected the coal industry to labor, price, and practice regulations, levying a 15 percent tax on all producers with a provision to refund a significant portion of the tax for those adhering to the legislation's dictates. James Carter, shareholder and president of the Carter Coal Co., filed suit against the board of directors when they voted to pay the tax.

On May 18, 1936, the Supreme Court ruled the act unconstitutional by a 5-4 margin. Associate Justice Sutherland

George Sutherland

read the Carter v. Carter Coal Company
Carter v. Carter Coal Company
Carter v. Carter Coal Company, 298 U.S. 238 , is a United States Supreme Court decision interpreting the Commerce Clause of the United States Constitution, which permits the United States Congress to "regulate Commerce.....

opinion, striking down the coal act in its entirety, citing the Schechter decision. Most surprising in the opinion was reliance on 19th-century cases legal scholars had thought long repudiated: Kidd v. Pearson
Kidd v. Pearson
Kidd v. Pearson, 128 U.S. 1 , was a case in which the Supreme Court of the United States held that a distinction between manufacturing and commerce meant that an Iowa law which prohibited the manufacture of alcohol was not unconstitutional in that it did not conflict with the power of the US...

and United States v. E. C. Knight Co.
United States v. E. C. Knight Co.
United States v. E. C. Knight Co., 156 U.S. 1 , also known as the "Sugar Trust Case,'" was a United States Supreme Court case that limited the government's power to control monopolies...

Ashton v. Cameron County Water Improvement Dist. No. 1

On May 25, 1936, the Supreme Court ruled the 1934 Municipal Bankruptcy Act (also known as the Sumners-Wilcox Bill) was unconstitutional in a 5-4 decision. The law amended the Federal Bankruptcy Act

Bankruptcy Act of 1898

The Bankruptcy Act of 1898 was the first United States Act of Congress involving Bankruptcy that gave companies an option of being protected from creditors...

and permitted any municipality or other political subdivision of any state to obtain a voluntary readjustment of its debts through proceedings in Federal Court. Texas' Cameron County Water Improvement Dist. No. 1, which claimed to be insolvent and unable to meets its debts in the long run, petitioned the local Federal District Court for readjustments granted under the Municipal Bankruptcy Act. The case eventually reached the Supreme Court, which found that the law violated Tenth Amendment

Tenth Amendment to the United States Constitution

The Tenth Amendment to the United States Constitution, which is part of the Bill of Rights, was ratified on December 15, 1791...

rights of state sovereignty.

Morehead v. New York ex rel. Tipaldo

The final provocation for New Deal supporters came in the overturning of a New York

New York

minimum wage

Minimum wage

statute on June 1, 1936. Morehead v. New York ex rel. Tipaldo was an important attempt among New Deal supporters to overturn a prior Supreme Court decision prohibiting wage price controls, Adkins v. Children's Hospital
Adkins v. Children's Hospital
Adkins v. Children's Hospital, , is a Supreme Court opinion holding that federal minimum wage legislation for women was an unconstitutional infringement of liberty of contract, as protected by the due process clause of the Fifth Amendment....

. Felix Frankfurter

Felix Frankfurter

Felix Frankfurter was an Associate Justice of the United States Supreme Court.-Early life:Frankfurter was born into a Jewish family on November 15, 1882, in Vienna, Austria, then part of the Austro-Hungarian Empire in Europe. He was the third of six children of Leopold and Emma Frankfurter...

, who had led the earlier unsuccessful arguments before the Supreme Court, worked carefully to craft the law for the New York legislature so it would stand up to challenges based upon the Adkins opinion.

The case resulted from the indictment of a Brooklyn

Brooklyn

Brooklyn is the most populous of New York City's five boroughs, with nearly 2.6 million residents, and the second-largest in area. Since 1896, Brooklyn has had the same boundaries as Kings County, which is now the most populous county in New York State and the second-most densely populated...

laundry owner John Tipaldo, who not only had failed to pay his female employees the required minimum salary ($12.40 per week), but had further hidden his transgression by falsifying his books. Tipaldo contested the law under which he was charged as unconstitutional and filed for habeas corpus
Habeas corpus
is a writ, or legal action, through which a prisoner can be released from unlawful detention. The remedy can be sought by the prisoner or by another person coming to his aid. Habeas corpus originated in the English legal system, but it is now available in many nations...

relief. The New York Court of Appeals

New York Court of Appeals

The New York Court of Appeals is the highest court in the U.S. state of New York. The Court of Appeals consists of seven judges: the Chief Judge and six associate judges who are appointed by the Governor to 14-year terms...

found itself in agreement with Tipaldo, being unable to find any substantial difference between the New York law and the Washington, D.C.

Washington, D.C.

Washington, D.C., formally the District of Columbia and commonly referred to as Washington, "the District", or simply D.C., is the capital of the United States. On July 16, 1790, the United States Congress approved the creation of a permanent national capital as permitted by the U.S. Constitution....

law overturned in Adkins.

How the court split its vote in this case is supportive of challenges to the "switch in time

The switch in time that saved nine

" narrative. Justices Brandeis

Louis Brandeis

, Stone

Harlan Fiske Stone

, and Cardozo

Benjamin N. Cardozo

Benjamin Nathan Cardozo was a well-known American lawyer and associate Supreme Court Justice. Cardozo is remembered for his significant influence on the development of American common law in the 20th century, in addition to his modesty, philosophy, and vivid prose style...

each thought Adkins was incorrectly decided and wanted to overturn it. Chief Justice

Chief Justice of the United States

Hughes

Charles Evans Hughes

believed the New York law differed from the law in Adkins and wanted to uphold the New York statute. Justices Van Devanter

Willis Van Devanter

Willis Van Devanter was an Associate Justice of the United States Supreme Court, January 3, 1911 to June 2, 1937.- Early life and career :...

, McReynolds

James Clark McReynolds

James Clark McReynolds was an American lawyer and judge who served as United States Attorney General under President Woodrow Wilson and as an Associate Justice of the United States Supreme Court...

, Sutherland

George Sutherland

, and Butler

Pierce Butler (justice)

Pierce Butler was an American jurist who served as an Associate Justice of the Supreme Court of the United States from 1923 until his death in 1939...

found no distinctions and voted to uphold the habeas corpus petition. The outcome of the Tipaldo case thus hung in the balance of Justices Roberts's vote. Roberts could find no distinction in the two minimum wage laws, but appears to have been inclined to support an overturning of Adkins anyway. However, there was a problem: the appellant had not taken issue with the Adkins precedent and failed to challenge it. Having no "case or controversy" legs upon which to stand, Roberts deferred to the Adkins precedent.

Roosevelt broke his year-long silence on Supreme Court issues to comment on the Tipaldo opinion:

Antecedents to the Judicial Procedures Reform Bill

The coming conflict with the court was foreshadowed by a campaign statement Roosevelt

Franklin D. Roosevelt

had made in 1932:
An April 1933 letter to the president offered the idea of packing the Court: "If the Supreme Court's membership could be increased to twelve, without too much trouble, perhaps the Constitution would be found to be quite elastic." The next month, soon-to-be Republican National Chairman Henry Plather Fletcher expressed his concern: "[A]n administration as fully in control as this one can pack it [the Supreme Court] as easily as an English government can pack the House of Lords."

Searching out solutions

As early as the autumn 1933, Roosevelt had begun anticipation of reforming a federal judiciary composed of a stark majority of Republican

Republican Party (United States)

appointees at all levels. Roosevelt tasked Attorney General

United States Attorney General

Homer Cummings

Homer Stille Cummings

with a year-long "legislative project of great importance". Justice Department

United States Department of Justice

The United States Department of Justice , is the United States federal executive department responsible for the enforcement of the law and administration of justice, equivalent to the justice or interior ministries of other countries.The Department is led by the Attorney General, who is nominated...

lawyers then commenced research on the "secret project," with Cummings devoting what time he could. The focus of the research was directed at restricting or removing the Supreme Court's power of judicial review

Judicial review

Judicial review is the doctrine under which legislative and executive actions are subject to review by the judiciary. Specific courts with judicial review power must annul the acts of the state when it finds them incompatible with a higher authority...

. However, an autumn 1935 Gallup Poll had returned a majority disapproval of attempts to limit the Supreme Court's power to declare acts unconstitutional. For the time being, Roosevelt stepped back to watch and wait.

Other alternatives were also sought: Roosevelt inquired about the rate at which the Supreme Court denied certiorari
Certiorari
Certiorari is a type of writ seeking judicial review, recognized in U.S., Roman, English, Philippine, and other law. Certiorari is the present passive infinitive of the Latin certiorare...

, hoping to attack the Court for the small number of cases it heard annually. He also asked about the case of Ex parte McCardle
Ex parte McCardle
Ex parte McCardle, 74 U.S. 506 , is a United States Supreme Court decision that examines the extent of the jurisdiction of the Supreme Court to review decisions of lower courts under federal statutory law.-Case history:...

, which limited the appellate jurisdiction

Appellate jurisdiction

Appellate jurisdiction is the power of the Supreme Court to review decisions and change outcomes of decisions of lower courts. Most appellate jurisdiction is legislatively created, and may consist of appeals by leave of the appellate court or by right...

of the Supreme Court, wondering if Congress could strip the Court's power to adjudicate constitutional questions. The span of possible options even included constitutional amendments; however, Roosevelt soured to this idea, citing the requirement of three-fourths of state legislatures needed to ratify, and that an opposition wealthy enough could too easily defeat an amendment. Further, Roosevelt deemed the amendment process in itself too slow when time was a scarce commodity.

Unexpected answer

Attorney General Cummings received novel advice from Princeton University

Princeton University

Princeton University is a private research university located in Princeton, New Jersey, United States. The school is one of the eight universities of the Ivy League, and is one of the nine Colonial Colleges founded before the American Revolution....

professor Edward S. Corwin

Edward Samuel Corwin

Edward Samuel Corwin was president of the American Political Science Association.-Biography:He was born in Plymouth, Michigan on January 19, 1878. He received his undergraduate degree from the University of Michigan in 1900; and his Ph.D. from the University of Pennsylvania in 1905...

in a December 16, 1936 letter. Corwin had relayed an idea from Harvard University

Harvard University

Harvard University is a private Ivy League university located in Cambridge, Massachusetts, United States, established in 1636 by the Massachusetts legislature. Harvard is the oldest institution of higher learning in the United States and the first corporation chartered in the country...

professor Arthur Holcombe, suggesting that Cummings tie the size of the Supreme Court's bench to the age of the justices since the popular view of the Court was critical of their age. However, another related idea fortuitously presented itself to Cummings as he and his assistant Carl McFarland were finishing their collaborative history of the Justice Department, Federal justice: chapters in the history of justice and the Federal executive. An opinion written by Associate Justice

Associate Justice of the Supreme Court of the United States

Associate Justices of the Supreme Court of the United States are the members of the Supreme Court of the United States other than the Chief Justice of the United States...

McReynolds

James Clark McReynolds

James Clark McReynolds was an American lawyer and judge who served as United States Attorney General under President Woodrow Wilson and as an Associate Justice of the United States Supreme Court...

—one of Cumming's predecessors as Attorney General, under Woodrow Wilson

Woodrow Wilson

Thomas Woodrow Wilson was the 28th President of the United States, from 1913 to 1921. A leader of the Progressive Movement, he served as President of Princeton University from 1902 to 1910, and then as the Governor of New Jersey from 1911 to 1913...

—had made a proposal in 1914 which was highly relevant to Roosevelt's current Supreme Court troubles:

The content of McReynolds's proposal and the bill later submitted by Roosevelt were so similar to each other that it is thought the most probable source of the idea. Roosevelt and Cummings also relished the opportunity to hoist McReynolds by his own petard. McReynolds, having been born in 1862, had been in his early fifties when he wrote his 1914 proposal, but was well over seventy when Roosevelt's plan was set forth.

The provisions of the bill adhered to four central principles:

allowing the President
President of the United States
The President of the United States of America is the head of state and head of government of the United States. The president leads the executive branch of the federal government and is the commander-in-chief of the United States Armed Forces....

to appoint one new, younger judge for each federal judge with 10 years service who did not retire or resign within six months after reaching the age of 70 years;
limitations upon the number of judges the President could appoint: no more than six Supreme Court justices, and no more than two on any lower federal court, with a maximum allocation between the two of 50 new judges just after the bill is passed into law;
that lower-level judges be able to float, roving to district courts with exceptionally busy or backlogged dockets; and
lower courts be administered by the Supreme Court through newly created "proctors".

The latter provisions were the result of lobbying by the energetic and reformist judge William Denman

William Denman (judge)

William Denman was a United States federal judge.Born in San Francisco, California, Denman received a degree in literature from the University of California, Berkeley in 1894, and an LL.B. from Harvard Law School in 1897...

of the Ninth Circuit Court

United States Court of Appeals for the Ninth Circuit

The United States Court of Appeals for the Ninth Circuit is a U.S. federal court with appellate jurisdiction over the district courts in the following districts:* District of Alaska* District of Arizona...

who believed the lower courts were in a state of disarray and that unnecessary delays were affecting the appropriate administration of justice. Roosevelt

Franklin D. Roosevelt

and Cummings

Homer Stille Cummings

authored accompanying messages to send to Congress

United States Congress

along with the proposed legislation, hoping to couch the debate in terms of the need for judicial efficiency and relieving the backlogged workload of elderly judges.

The choice of date on which to launch the plan was largely determined by other events taking place. Roosevelt wanted to present the legislation before the Supreme Court began hearing oral arguments on the Wagner Act

National Labor Relations Act

The National Labor Relations Act or Wagner Act , is a 1935 United States federal law that limits the means with which employers may react to workers in the private sector who create labor unions , engage in collective bargaining, and take part in strikes and other forms of concerted activity in...

cases, scheduled to begin on February 8, 1937; however, Roosevelt also did not want to present the legislation before the annual White House dinner for the Supreme Court, scheduled for February 2. With a Senate recess between February 3–5, and the weekend falling on February 6–7, Roosevelt had to settle for February 5. Other pragmatic concerns also intervened. The administration wanted to introduce the bill early enough in the Congressional session to make sure it passed before the summer recess, and, if successful, to leave time for nominations to any newly-created bench seats.

Public Reaction

After the proposed legislation was announced, public reaction was split. Since the Supreme Court was generally conflated with the U.S. Constitution itself, the assault against the Court brushed up against this wider public reverence. Roosevelt's personal involvement in selling the plan managed to mitigate this hostility. In a speech at the Democratic Victory Dinner on March 4, Roosevelt called for party loyalists to support his plan.

Roosevelt followed this up with his ninth Fireside chat on March 9, in which he made his case directly to the public. In his address, Roosevelt decried the Supreme Court's majority for "reading into the Constitution words and implications which are not there, and which were never intended to be there". He also argued directly that the Bill was needed to overcome the Supreme Court's opposition to the New Deal, stating that the nation had reached a point where it "must take action to save the Constitution from the Court, and the Court from itself".

Through these interventions, Roosevelt managed briefly to earn favorable press for his proposal. In general, however, the overall tenor of reaction in the press was negative. A series of Gallup Polls conducted between February and May 1937 showed that the public opposed the proposed bill by a fluctuating majority. By late March it had become clear that the President's personal abilities to sell his plan were limited:

Over the entire period, support averaged about 39%. Opposition to Court packing ranged from a low of 41% on 24 March to a high of 49% on 3 March. On average, about 46% of each sample indicated opposition to President Roosevelt's proposed legislation. And it is clear that, after a surge from an early push by FDR, the public support for restructuring the Court rapidly melted.

Concerted letter-writing campaigns to Congress against the bill were launched, with opinion tallying against the bill nine-to-one. Bar associations nationwide followed suit as well, lining up in opposition to the bill. Roosevelt's own Vice President

Vice President of the United States

The Vice President of the United States is the holder of a public office created by the United States Constitution. The Vice President, together with the President of the United States, is indirectly elected by the people, through the Electoral College, to a four-year term...

John Nance Garner

John Nance Garner, IV , was the 32nd Vice President of the United States and the 44th Speaker of the United States House of Representatives .- Early life and family :...

expressed disapproval of the bill, holding his nose and giving a thumbs down from the rear of the Senate

United States Senate

chamber. The editorialist William Allen White

William Allen White

William Allen White was a renowned American newspaper editor, politician, author, and leader of the Progressive movement...

characterized Rooselvet's actions in a column on February 6 as an "... elaborate stage play to flatter the people by a simulation of frankness while denying Americans their democratic rights and discussions by suave avoidance - these are not the traits of a democratic leader.

Reaction against the bill also spawned the National Committee to Uphold Constitutional Government

National Committee to Uphold Constitutional Government

The National Committee to Uphold Constitutional Government , also known as the Committee for Constitutional Government , was founded in 1937 in opposition to Franklin D. Roosevelt's Court Packing Bill. The Committee opposed most, if not all, of the New Deal legislation.Founders of the Committee...

, which was launched in February 1937 by three leading opponents of the New Deal. Frank E. Gannett, a newspaper magnate, provided both money and publicity. Two other founders, Amos Pinchot

Amos Pinchot

Amos Richards Eno Pinchot was an American reformist. He never held public office but managed to exert considerable influence in reformist circles and did much to keep progressive ideas alive in the 1920s....

, a prominent lawyer from New York, and Edward Rumely

Edward Rumely

Edward Aloysius Rumely was a physician, educator, and newspaper man from Indiana.- Education :Rumely was born at La Porte, Indiana, in 1882. He attended University of Notre Dame, Oxford University, University of Heidelberg. He graduated from the University of Freiburg, where he received his M.D...

had both been Roosevelt supporters who had soured on the President's agenda. Rumely directed an effective and intensive mailing campaign to drum up public opposition to the measure. Among the original members of the Committee were James Truslow Adams

James Truslow Adams

James Truslow Adams was an American writer and historian. He was not related to the famous Adams family...

, Charles Coburn

Charles Coburn

Charles Douville Coburn was an American film and theater actor.-Biography:Coburn was born in Macon, Georgia, the son of Scots-Irish Americans Emma Louise Sprigman and Moses Douville Coburn. Growing up in Savannah, he started out doing odd jobs at the local Savannah Theater, handing out programs,...

, John Haynes Holmes

John Haynes Holmes

John Haynes Holmes was a prominent Unitarian minister and pacifist, noted for his anti-war activism.-Early years:John Haynes Holmes was born in Philadelphia on November 29, 1879. He studied at Harvard, graduating in 1902, and Harvard Divinity School, which he graduated in 1904. He was then called...

, Dorothy Thompson

Dorothy Thompson

Dorothy Thompson was an American journalist and radio broadcaster, who in 1939 was recognized by Time magazine as the second most influential women in America next to Eleanor Roosevelt...

, Samuel S. McClure, Mary Dimmick Harrison

Mary Dimmick Harrison

Mary Dimmick Harrison was the second wife of the 23rd United States president Benjamin Harrison. She was 25 years younger than Harrison, and was the niece of his first wife.- Biography :...

, and Frank A. Vanderlip

Frank A. Vanderlip

Frank A. Vanderlip was an American banker. From 1897-1901, Vanderlip was the Assistant Secretary of Treasury for President of the United States William McKinley's second term. In that office he negotiated with National City Bank a $200 million loan to the government to finance the Spanish...

. The Committee's membership reflected the bipartisan opposition to the bill, especially among better educated and wealthier constituencies. As Gannett explained, "we were careful not to include anyone who had been prominent in party politics, particularly in the Republican camp. We preferred to have the Committee made up of liberals and Democrats, so that we would not be charged with having partisan motives."

The Committee made a determined stand against the Judiciary bill. It distributed more than 15 million letters condemning the plan. They targeted specific constituencies: farm organization, editors of agricultural publications, and individual farmers. They also distributed material to 161,000 lawyers, 121,000 doctors, 68,000 business leaders, and 137,000 clergymen. Pamphleteering, press releases and trenchantly worded radio editorials condemning the bill also formed part of the onslaught in the public arena.

House action

Traditionally, legislation proposed by the administration first goes before the House of Representatives

United States House of Representatives

The United States House of Representatives is one of the two Houses of the United States Congress, the bicameral legislature which also includes the Senate.The composition and powers of the House are established in Article One of the Constitution...

. However, Roosevelt failed to consult Congressional leaders before announcing the bill, which stopped cold any chance of passing the bill in the House. House Judiciary Committee

United States House Committee on the Judiciary

The U.S. House Committee on the Judiciary, also called the House Judiciary Committee, is a standing committee of the United States House of Representatives. It is charged with overseeing the administration of justice within the federal courts, administrative agencies and Federal law enforcement...

chairman Hatton W. Sumners

Hatton W. Sumners

Hatton William Sumners was a Congressman from Texas from 1913—1947 and served as Chairman of the House Judiciary Committee.-Early life and career:...

refused to endorse the bill, actively chopping it up within his committee in order to block the bill's chief effect of Supreme Court expansion. Finding such stiff opposition within the House, the administration arranged for the bill to be taken up in the Senate.

Congressional Republicans

Republican Party (United States)

deftly decided to remain silent on the matter, denying congressional Democrats

Democratic Party (United States)

the opportunity to use them as a unifying force. Republicans then watched from the sidelines as the Democratic party split itself in the ensuing Senate fight.

Senate hearings

The administration began making its case for the bill before the Senate Judiciary Committee

United States Senate Committee on the Judiciary

The United States Senate Committee on the Judiciary is a standing committee of the United States Senate, of the United States Congress. The Judiciary Committee, with 18 members, is charged with conducting hearings prior to the Senate votes on confirmation of federal judges nominated by the...

on March 10, 1937. Attorney General

United States Attorney General

Cummings

Homer Stille Cummings

' testimony was grounded on four basic complaints of the administration:

the reckless use of injunction
Injunction
An injunction is an equitable remedy in the form of a court order that requires a party to do or refrain from doing certain acts. A party that fails to comply with an injunction faces criminal or civil penalties and may have to pay damages or accept sanctions...

s by the courts to pre-empt the operation of New Deal legislation;
aged and infirm judges who declined to retire;
crowded dockets at all levels of the federal court system; and
the need for a reform which would infuse "new blood" in the federal court system.

Administration advisor Robert H. Jackson

Robert H. Jackson

Robert Houghwout Jackson was United States Attorney General and an Associate Justice of the United States Supreme Court . He was also the chief United States prosecutor at the Nuremberg Trials...

testified next, attacking the Supreme Court's alleged misuse of judicial review

Judicial review

and the ideological perspective of the majority. Further administration witnesses were grilled by the committee, so much so that after two weeks less than half the administration's witnesses had been called. Exasperated by the stall tactics they were meeting on the committee, administration officials decided to call no further witnesses; it later proved to be a tactical blunder, allowing the opposition to indefinitely drag-on the committee hearings. Further setbacks for the administration occurred in the failure of farm and labor interests to align with the administration.

However, once the bill's opposition had gained the floor, it pressed its upper hand, continuing hearings as long as public sentiment against the bill remained in doubt. Of note for the opposition was the testimony of Harvard University

Harvard University

law professor Erwin Griswold

Erwin Griswold

Erwin Nathaniel Griswold was an appellate attorney who argued many cases before the U.S. Supreme Court. Griswold served as Solicitor General of the United States under Presidents Lyndon B. Johnson and Richard M. Nixon. He also served as Dean of Harvard Law School for 21 years. Several times he...

. Specifically attacked by Griswold's testimony was the claim made by the administration that Roosevelt's court expansion plan had precedent in U.S. history and law. While it was true the size of the Supreme Court had been expanded since the founding in 1789, it had never been done for reasons similar to Roosevelt's. The following table lists all the expansions of the court:

Notes
Year	Size	Enacting Legislation	Comments
1789	6	Judiciary Act of 1789 Judiciary Act of 1789 The United States Judiciary Act of 1789 was a landmark statute adopted on September 24, 1789 in the first session of the First United States Congress establishing the U.S. federal judiciary...	Original court with Chief Justice & five associate justices Associate Justice of the Supreme Court of the United States Associate Justices of the Supreme Court of the United States are the members of the Supreme Court of the United States other than the Chief Justice of the United States... ; two justices for each of the three circuit courts.
1801	5	Judiciary Act of 1801	Lameduck Federalists Federalist Party (United States) The Federalist Party was the first American political party, from the early 1790s to 1816, the era of the First Party System, with remnants lasting into the 1820s. The Federalists controlled the federal government until 1801... , at end of President President of the United States The President of the United States of America is the head of state and head of government of the United States. The president leads the executive branch of the federal government and is the commander-in-chief of the United States Armed Forces.... John Adams John Adams John Adams was an American lawyer, statesman, diplomat and political theorist. A leading champion of independence in 1776, he was the second President of the United States... 's administration, greatly expand federal courts and reduce the number of associate justices¹ to four in order to dominate the judiciary and hinder judicial appointments by incoming President Thomas Jefferson Thomas Jefferson Thomas Jefferson was the principal author of the United States Declaration of Independence and the Statute of Virginia for Religious Freedom , the third President of the United States and founder of the University of Virginia... .
1802	6	Judiciary Act of 1802 Judiciary Act of 1802 The United States Judiciary Act of 1802 was a Federal statute, enacted on April 29, 1802, to reorganize the federal court system. It restored some elements of the Judiciary Act of 1801, which had been adopted by the Federalist majority in the previous Congress, but was repealed by the...	Judiciary Act of 1801 repealed by Democratic-Republicans; no seat on the court actually abolished.
1807	7	Seventh Circuit Act	Created a new circuit court for OH Ohio Ohio is a Midwestern state in the United States. The 34th largest state by area in the U.S.,it is the 7th‑most populous with over 11.5 million residents, containing several major American cities and seven metropolitan areas with populations of 500,000 or more.The state's capital is Columbus... , KY Kentucky The Commonwealth of Kentucky is a state located in the East Central United States of America. As classified by the United States Census Bureau, Kentucky is a Southern state, more specifically in the East South Central region. Kentucky is one of four U.S. states constituted as a commonwealth... , & TN Tennessee Tennessee is a U.S. state located in the Southeastern United States. It has a population of 6,346,105, making it the nation's 17th-largest state by population, and covers , making it the 36th-largest by total land area... ; Jefferson appoints the new associate justice.
1837	9	Eighth & Ninth Circuits Act	Signed by President Andrew Jackson Andrew Jackson Andrew Jackson was the seventh President of the United States . Based in frontier Tennessee, Jackson was a politician and army general who defeated the Creek Indians at the Battle of Horseshoe Bend , and the British at the Battle of New Orleans... on his last full day in office; Jackson nominates two associate justices, both confirmed; one declines appointment. New President Martin Van Buren Martin Van Buren Martin Van Buren was the eighth President of the United States . Before his presidency, he was the eighth Vice President and the tenth Secretary of State, under Andrew Jackson .... then appoints the second.
1863	10	Tenth Circuit Act	Created Tenth Circuit to serve CA California California is a state located on the West Coast of the United States. It is by far the most populous U.S. state, and the third-largest by land area... and OR Oregon Oregon is a state in the Pacific Northwest region of the United States. It is located on the Pacific coast, with Washington to the north, California to the south, Nevada on the southeast and Idaho to the east. The Columbia and Snake rivers delineate much of Oregon's northern and eastern... ; added associate justice to serve it.
1866	7	Judicial Circuits Act Judicial Circuits Act The Judicial Circuits Act of 1866 reorganized the United States circuit courts and provided for the gradual elimination of several seats on the Supreme Court of the United States...	Chief Justice Salmon P. Chase Salmon P. Chase Salmon Portland Chase was an American politician and jurist who served as U.S. Senator from Ohio and the 23rd Governor of Ohio; as U.S. Treasury Secretary under President Abraham Lincoln; and as the sixth Chief Justice of the United States Supreme Court.Chase was one of the most prominent members... lobbied for this reduction.¹ The Radical Republican Congress took the occasion to overhaul the courts to reduce the influence of former Confederate States.
1869	9	Judiciary Act of 1869 Judiciary Act of 1869 The Judiciary Act of 1869 , also called the Circuit Judges Act of 1869, was a United States statute that made two important reforms of the federal judiciary....	Set Court at current size, reduced burden of riding circuit by introducing intermediary circuit court justices.
1. Because federal justices serve during "good behavior", reductions in a federal court's size are accomplished only through either abolishing the court or attrition—i.e., a seat is abolished only when it becomes vacant. However, the Supreme Court cannot be abolished. As such, the actual size of the Supreme Court during a contraction may remain larger than the law provides until well after that law's enactment.

Another event damaging to the administration's case was a letter authored by Chief Justice

Chief Justice of the United States

Hughes

Charles Evans Hughes

to Senator

United States Senate

Burton Wheeler

Burton K. Wheeler

Burton Kendall Wheeler was an American politician of the Democratic Party and a United States Senator from 1923 until 1947.-Early life:...

, which directly contradicted Roosevelt's claim of an overworked Supreme Court turning down over 85 percent of certiorari petitions in an attempt to keep up with their docket. The truth of the matter, according to Hughes, was that rejections typically resulted from the defective nature of the petition, not due to the court's docket load.

White Monday

On March 29, 1937, the court handed down three decisions upholding New Deal legislation, two of them unanimous: West Coast Hotel Co. v. Parrish
West Coast Hotel Co. v. Parrish
West Coast Hotel Co. v. Parrish, , was a decision by the United States Supreme Court upholding the constitutionality of minimum wage legislation enacted by the State of Washington, overturning an earlier decision in Adkins v. Children's Hospital,...

, Wright v. Vinton Branch, and Virginia Railway v. Federation. The Wright case upheld a new Frazier-Lemke Act which had been redrafted to meet the Court's objections in the Radford case; similarly, Virginia Railway case upheld labor regulations for the railroad industry, and is particularly notable for its foreshadowing of how the Wagner Act

National Labor Relations Act

cases would be decided as the National Labor Relations Board

National Labor Relations Board

The National Labor Relations Board is an independent agency of the United States government charged with conducting elections for labor union representation and with investigating and remedying unfair labor practices. Unfair labor practices may involve union-related situations or instances of...

was modeled on the Railway Labor Act

Railway Labor Act

The Railway Labor Act is a United States federal law that governs labor relations in the railroad and airline industries. The Act, passed in 1926 and amended in 1934 and 1936, seeks to substitute bargaining, arbitration and mediation for strikes as a means of resolving labor disputes...

contested in the case.

West Coast Hotel v. Parrish

However, the Parrish case received the most attention, and later became an integral part of the "switch in time" narrative of conventional history. In the case, the court divided along the same lines it had in the Tipaldo case, only this time around Roberts voted to overrule the Adkins precedent as the case brief specifically asked the court to reconsider its prior decision. Further, the decision worked to hinder Roosevelt's push for the court reform bill, further reducing what little public support there was for change in the Supreme Court.

Roberts had voted

Rule of four

The rule of four is a Supreme Court of the United States practice that permits four of the nine justices to grant a writ of certiorari. This is done specifically to prevent a majority of the Court from controlling the Court's docket...

to grant certiorari to hear the Parrish case before the election of 1936

United States presidential election, 1936

The United States presidential election of 1936 was the most lopsided presidential election in the history of the United States in terms of electoral votes. In terms of the popular vote, it was the third biggest victory since the election of 1820, which was not seriously contested.The election took...

. Oral arguments occurred on December 16 and 17, 1936, with counsel for Parrish specifically asking the court to reconsider its decision in Adkins v. Children's Hospital
Adkins v. Children's Hospital
Adkins v. Children's Hospital, , is a Supreme Court opinion holding that federal minimum wage legislation for women was an unconstitutional infringement of liberty of contract, as protected by the due process clause of the Fifth Amendment....

, which had been the basis for striking down a New York

New York

minimum wage law

Minimum wage law

Minimum wage law is the body of law which prohibits employers from hiring employees or workers for less than a given hourly, daily or monthly minimum wage. More than 90% of all countries have some kind of minimum wage legislation....

in Morehead v. New York ex rel. Tipaldo in the late spring of 1936.

Roberts, however, indicated his desire to overturn Adkins immediately after oral arguments on Dec. 17, 1936. The initial conference vote on Dec. 19, 1936 was split 4-4; with this even division on the Court, the holding of the Washington Supreme Court

Washington Supreme Court

The Washington Supreme Court is the highest court in the judiciary of the U.S. state of Washington. The Court is composed of a Chief Justice and eight Justices. of the Court are elected to six-year terms...

, finding the minimum wage statute constitutional, would stand. The eight voting justices anticipated Justice Stone

Harlan Fiske Stone

—absent due to illness—would be the fifth vote necessary for a majority opinion affirming the constitutionality of the minimum wage law. As Chief Justice Hughes desired a clear and strong 5-4 affirmation of the Washington Supreme Court's judgment, rather than a 4-4 default affirmation, he convinced the other justices to wait until Stone's return before both deciding and announcing the case.

President

President of the United States

Roosevelt

Franklin D. Roosevelt

announced his court reform bill on February 5, 1937, the day of the first conference vote after Stone's February 1, 1937 return to the bench. Roosevelt later made his justifications for the bill to the public on March 9, 1937 during his 9th Fireside Chat. The Court's opinion in Parrish was not published until March 29, 1937, after Roosevelt's radio address. Chief Justice Hughes wrote in his autobiographical notes that Roosevelt's court reform proposal "had not the slightest effect on our [the court's] decision," but due to the delayed announcement of its decision the Court was characterized as retreating under fire.

Van Devanter retires

May 18, 1937 witnessed two setbacks for the administration. First, Associate Justice

Associate Justice of the Supreme Court of the United States

Associate Justices of the Supreme Court of the United States are the members of the Supreme Court of the United States other than the Chief Justice of the United States...

Willis Van Devanter

Willis Van Devanter was an Associate Justice of the United States Supreme Court, January 3, 1911 to June 2, 1937.- Early life and career :...

—encouraged by the restoration of full-salary pensions under the March 1, 1937 Supreme Court Retirement Act—announced his intent to retire on June 2, 1937, the end of the term. This undercut one of Roosevelt's chief complaints against the court—he had not been given an opportunity in the entirety of his first term to make even a nomination to the high court. It also presented Roosevelt with a personal dilemma: he had already long ago promised the first court vacancy to Senate Majority Leader

Party leaders of the United States Senate

Joseph T. Robinson. As Roosevelt had based his attack of the court upon the ages of the justices, appointing the 65 year old Robinson would belie Roosevelt's stated goal of infusing the court with younger blood. Further, Roosevelt worried about whether Robinson could be trusted on the high bench; while Robinson was considered to be Roosevelt's New Deal "marshal" and was regarded as a progressive of the stripe of Woodrow Wilson, he was a conservative Democrat

Democratic Party (United States)

on some issues too. Finally, Van Devanter's retirement alleviated pressure to reconstitute a more politically-friendly court.

Committee report

The second setback occurred in the Senate Judiciary Committee

United States Senate Committee on the Judiciary

action that day on Roosevelt's court reform bill. First, an attempt at a compromise amendment which would have allowed the creation of only two additional seats was defeated 10–8. Next, a motion to report the bill favorably to the floor of the Senate

United States Senate

also failed 10–8. Then, a motion to report the bill "without recommendation" failed by the same margin, 10–8. Finally, a vote was taken to report the bill adversely, which passed 10–8.

On June 14, the committee issued a scathing report that called FDR's plan "a needless, futile and utterly dangerous abandonment of constitutional principle... without precedent or justification".

Public support for the President's plan, which had never been particularly strong, dissipated quickly in the aftermath of these developments.

Floor debate

Entrusted with ensuring the bill's passage, Robinson began his attempt to get the votes necessary to pass the bill. In the meantime, he worked to finish another compromise which would abate Democratic opposition to the bill. Ultimately devised was the Hatch-Logan amendment, which resembled Roosevelt's plan, but with changes in some details: the age limit for appointing a new coadjutor was increased to 75, and appointments of such a nature were limited to one per calendar year.

The Senate opened debate on the substitute proposal on July 2. Robinson led the charge, holding the floor for two days. Procedural measures were used to limit debate and prevent any potential filibuster. By July 12, Robinson had begun to show signs of strain, leaving the Senate chamber complaining of chest pains.

Death of Robinson and defeat

On July 14, 1937 a housemaid found Robinson dead of a heart attack in his apartment, the Congressional Record

Congressional Record

The Congressional Record is the official record of the proceedings and debates of the United States Congress. It is published by the United States Government Printing Office, and is issued daily when the United States Congress is in session. Indexes are issued approximately every two weeks...

at his side. With Robinson gone so too were all hopes of the bill's passage. Roosevelt further alienated his party's Senators when he decided not to attend Robinson's funeral in Little Rock, Arkansas

Little Rock, Arkansas

Little Rock is the capital and the largest city of the U.S. state of Arkansas. The Metropolitan Statistical Area had a population of 699,757 people in the 2010 census...

.

On returning to Washington, D.C.

Washington, D.C.

, Vice President John Nance Garner

John Nance Garner

John Nance Garner, IV , was the 32nd Vice President of the United States and the 44th Speaker of the United States House of Representatives .- Early life and family :...

informed Roosevelt, "You are beat. You haven't got the votes." On July 22, the Senate voted 70–20 to send the judicial-reform measure back to committee, where the controversial language was stripped by explicit instruction from the Senate floor.

By July 29, 1937, the Senate Judiciary Committee—at the behest of new Senate Majority Leader Alben Barkley—had produced a revised Judicial Procedures Reform Act. This new legislation met with the previous bill's goal of revising the lower courts, but without providing for new federal judges or justices.

Congress passed the revised legislation, and Roosevelt signed it into law, on August 26. This new law required that:

parties-at-suit provide early notice to the federal government of cases with constitutional implications;
federal courts grant government attorneys the right to appear in such cases;
appeals in such cases be expedited to the Supreme Court;
any constitutional injunction
Injunction
An injunction is an equitable remedy in the form of a court order that requires a party to do or refrain from doing certain acts. A party that fails to comply with an injunction faces criminal or civil penalties and may have to pay damages or accept sanctions...

would no longer be enforced by one federal judge, but rather three; and
such injunctions would be limited to a sixty day duration.

Consequences

A political fight which began as a conflict between the President

President of the United States

and the Supreme Court

Supreme Court of the United States

turned into a battle between Roosevelt

Franklin D. Roosevelt

and the recalcitrant members of his own party in the Congress

United States Congress

. The political consequences were wide-reaching, extending beyond the narrow question of judicial reform to implicate the political future of the New Deal itself. Not only was bipartisan support for Roosevelt's agenda largely dissipated by the struggle, the overall loss of political capital in the arena of public opinion was also significant.

As Michael Parrish has written, "the protracted legislative battle over the Court-packing bill blunted the momentum for additional reforms, divided the New Deal coalition, squandered the political advantage Roosevelt had gained in the 1936 elections, and gave fresh ammunition to those who accused him of dictatorship, tyranny, and fascism. When the dust settled, FDR had suffered a humiliating political defeat at the hands of Chief Justice

Chief Justice of the United States

Hughes

Charles Evans Hughes

and the administration's Congressional opponents."

With the retirement of Justice Willis Van Devanter

Willis Van Devanter

Willis Van Devanter was an Associate Justice of the United States Supreme Court, January 3, 1911 to June 2, 1937.- Early life and career :...

, the Court's composition began to move solidly in support of Roosevelt's legislative agenda. By the end of 1941, following the deaths of Justices Benjamin N. Cardozo

Benjamin N. Cardozo

(1938) and Pierce Butler

Pierce Butler (justice)

Pierce Butler was an American jurist who served as an Associate Justice of the Supreme Court of the United States from 1923 until his death in 1939...

(1939), and the retirements of Van Devanter (1937), George Sutherland

George Sutherland

(1938), Louis Brandeis

Louis Brandeis

(1939), James Clark McReynolds

James Clark McReynolds

James Clark McReynolds was an American lawyer and judge who served as United States Attorney General under President Woodrow Wilson and as an Associate Justice of the United States Supreme Court...

(1941), and Charles Evans Hughes

Charles Evans Hughes

(1941), only two Justices (former Associate Justice, by then promoted to Chief Justice, Harlan Fiske Stone

Harlan Fiske Stone

, and Associate Justice Owen Roberts) remained from the Court Roosevelt inherited in 1933.

As former Supreme Court Chief Justice William Rehnquist

William Rehnquist

William Hubbs Rehnquist was an American lawyer, jurist, and political figure who served as an Associate Justice on the Supreme Court of the United States and later as the 16th Chief Justice of the United States...

observed:

Timeline

Year	Date	Event
Year	Date	Case	Cite	Vote	Holding
1934	Jan 8	Home Building & Loan Association v. Blaisdell Home Building & Loan Association v. Blaisdell Home Building & Loan Association v. Blaisdell, 290 U.S. 398 , was a decision of the United States Supreme Court holding that Minnesota's suspension of creditor's remedies was not in violation of the United States Constitution. Blaisdell was decided during the height of the Great Depression and has...			Minnesota Minnesota Minnesota is a U.S. state located in the Midwestern United States. The twelfth largest state of the U.S., it is the twenty-first most populous, with 5.3 million residents. Minnesota was carved out of the eastern half of the Minnesota Territory and admitted to the Union as the thirty-second state... 's suspension of creditor's remedies constitutional
1934	Mar 5	Nebbia v. New York Nebbia v. New York Nebbia v. New York, 291 U.S. 502 , was a case in which the Supreme Court of the United States determined whether the state of New York could regulate the price of milk for dairy farmers, dealers, and retailers....			New York New York New York is a state in the Northeastern region of the United States. It is the nation's third most populous state. New York is bordered by New Jersey and Pennsylvania to the south, and by Connecticut, Massachusetts and Vermont to the east... 's regulation of milk prices constitutional
1935	Jan 7	Panama Refining Co. v. Ryan Panama Refining Co. v. Ryan Panama Refining Co. v. Ryan, 293 U.S. 388 , also known as the Hot Oil case, was a case in which the United States Supreme Court ruled unconstitutional the Roosevelt Administration's prohibition of interstate and foreign trade in petroleum goods produced in excess of state quotas—the "hot oil"...			National Industrial Recovery Act National Industrial Recovery Act The National Industrial Recovery Act , officially known as the Act of June 16, 1933 The National Industrial Recovery Act (NIRA), officially known as the Act of June 16, 1933 The National Industrial Recovery Act (NIRA), officially known as the Act of June 16, 1933 (Ch. 90, 48 Stat. 195, formerly... , §9(c) unconstitutional
	Feb 18	Norman v. Baltimore & Ohio R. Co.			Gold Clause Cases Gold Clause Cases The Gold Clause Cases were a series of actions brought before the Supreme Court of the United States, in which the court narrowly upheld restrictions on the ownership of gold implemented by the administration of U.S. President Franklin D. Roosevelt in order to fight the Great Depression. The cases... : Congressional abrogation of contractual gold payment clauses constitutional
		Nortz v. United States
		Perry v. United States
	May 6	Railroad Retirement Bd. v. Alton R. Co.			Railroad Retirement Act unconstitutional
	May 27	Schechter Poultry Corp. v. United States Schechter Poultry Corp. v. United States A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495 , was a decision by the Supreme Court of the United States that invalidated regulations of the poultry industry according to the nondelegation doctrine and as an invalid use of Congress's power under the commerce clause...			National Industrial Recovery Act unconstitutional
		Louisville Joint Stock Land Bank v. Radford Louisville Joint Stock Land Bank v. Radford Louisville Joint Stock Land Bank v. Radford, 295 U.S. 555 , was a decision by the Supreme Court of the United States that ruled the Frazier-Lemke Act unconstitutional in violation of the Fifth Amendment...			Frazier-Lemke Act unconstitutional
		Humphrey's Executor v. United States Humphrey's Executor v. United States Humphrey's Executor v. United States, , was a United States Supreme Court case decided during the Franklin Delano Roosevelt presidency, regarding the powers that a President of the United States has to remove certain executive officials of a "quasi-legislative," "quasi-judicial" administrative body...			President may not remove FTC Federal Trade Commission The Federal Trade Commission is an independent agency of the United States government, established in 1914 by the Federal Trade Commission Act... commissioner without cause
1936	Jan 6	United States v. Butler United States v. Butler United States v. Butler, , was a case in which the Supreme Court of the United States ruled that the processing taxes instituted under the 1933 Agricultural Adjustment Act were unconstitutional...			Agricultural Adjustment Act Agricultural Adjustment Act The Agricultural Adjustment Act was a United States federal law of the New Deal era which restricted agricultural production by paying farmers subsidies not to plant part of their land and to kill off excess livestock... unconstitutional
	Feb 17	Ashwander v. TVA			Tennessee Valley Authority Tennessee Valley Authority The Tennessee Valley Authority is a federally owned corporation in the United States created by congressional charter in May 1933 to provide navigation, flood control, electricity generation, fertilizer manufacturing, and economic development in the Tennessee Valley, a region particularly affected... constitutional
	Apr 6	Jones v. SEC			SEC rebuked for "Star Chamber" abuses
	May 18	Carter v. Carter Coal Company Carter v. Carter Coal Company Carter v. Carter Coal Company, 298 U.S. 238 , is a United States Supreme Court decision interpreting the Commerce Clause of the United States Constitution, which permits the United States Congress to "regulate Commerce.....			Bituminous Coal Conservation Act of 1935 unconstitutional
	May 25	Ashton v. Cameron County Water Improvement Dist. No. 1			Municipal Bankruptcy Act of 1934 ruled unconstitutional
	June 1	Morehead v. New York ex rel. Tipaldo			New York's minimum wage Minimum wage A minimum wage is the lowest hourly, daily or monthly remuneration that employers may legally pay to workers. Equivalently, it is the lowest wage at which workers may sell their labour. Although minimum wage laws are in effect in a great many jurisdictions, there are differences of opinion about... law unconstitutional
	Nov 3	Roosevelt electoral landslide United States presidential election, 1936 The United States presidential election of 1936 was the most lopsided presidential election in the history of the United States in terms of electoral votes. In terms of the popular vote, it was the third biggest victory since the election of 1820, which was not seriously contested.The election took... ("As Maine goes, so goes Vermont" As Maine goes, so goes the nation "As Maine goes, so goes the nation" is a phrase that at one time was in wide currency in United States politics. The phrase described Maine's reputation as a bellwether state for presidential elections... - James Farley)
	Dec 16	Oral arguments heard on West Coast Hotel Co. v. Parrish West Coast Hotel Co. v. Parrish West Coast Hotel Co. v. Parrish, , was a decision by the United States Supreme Court upholding the constitutionality of minimum wage legislation enacted by the State of Washington, overturning an earlier decision in Adkins v. Children's Hospital,...
	Dec 17	Associate Justice Associate Justice of the Supreme Court of the United States Associate Justices of the Supreme Court of the United States are the members of the Supreme Court of the United States other than the Chief Justice of the United States... Owen Roberts indicates his vote to overturn Adkins v. Children's Hospital Adkins v. Children's Hospital Adkins v. Children's Hospital, , is a Supreme Court opinion holding that federal minimum wage legislation for women was an unconstitutional infringement of liberty of contract, as protected by the due process clause of the Fifth Amendment.... , upholding Washington state's minimum wage Minimum wage A minimum wage is the lowest hourly, daily or monthly remuneration that employers may legally pay to workers. Equivalently, it is the lowest wage at which workers may sell their labour. Although minimum wage laws are in effect in a great many jurisdictions, there are differences of opinion about... statute contested in Parrish
1937	Feb 5	Final conference vote on West Coast Hotel
	Feb 5	Judicial Procedures Reform Bill of 1937 ("JPRB37") announced
	Feb 8	Supreme Court begins hearing oral arguments on Wagner Act cases
	Mar 9	"Fireside chat Fireside chats The fireside chats were a series of thirty evening radio addresses given by United States President Franklin D. Roosevelt between 1933 and 1944.-Origin of radio address:... " regarding national reaction to JPRB37
	Mar 29	West Coast Hotel Co. v. Parrish West Coast Hotel Co. v. Parrish West Coast Hotel Co. v. Parrish, , was a decision by the United States Supreme Court upholding the constitutionality of minimum wage legislation enacted by the State of Washington, overturning an earlier decision in Adkins v. Children's Hospital,...			Washington state's minimum wage law constitutional
		Wright v. Vinton Branch			New Frazier-Lemke Act constitutional
		Virginian Railway Co. v. Railway Employees			Railway Labor Act Railway Labor Act The Railway Labor Act is a United States federal law that governs labor relations in the railroad and airline industries. The Act, passed in 1926 and amended in 1934 and 1936, seeks to substitute bargaining, arbitration and mediation for strikes as a means of resolving labor disputes... constitutional
	Apr 12	NLRB v. Jones & Laughlin Steel Corp. National Labor Relations Board v. Jones & Laughlin Steel Corporation National Labor Relations Board v. Jones & Laughlin Steel Corporation, 301 U.S. 1 , was a United States Supreme Court case that declared that the National Labor Relations Act of 1935 was constitutional...			National Labor Relations Act National Labor Relations Act The National Labor Relations Act or Wagner Act , is a 1935 United States federal law that limits the means with which employers may react to workers in the private sector who create labor unions , engage in collective bargaining, and take part in strikes and other forms of concerted activity in... constitutional
		NLRB v. Fruehauf Trailer Co.
		NLRB v. Friedman-Harry Marks Clothing Co.
		Associated Press v. NLRB
		Washington Coach Co. v. NLRB
	May 18	"Horseman" Four Horsemen (Supreme Court) The "Four Horsemen" was the nickname given by the press to four conservative members of the United States Supreme Court during the 1932–1937 terms, who opposed the New Deal agenda of President Franklin Roosevelt. They were Justices Pierce Butler, James Clark McReynolds, George Sutherland,... Willis Van Devanter Willis Van Devanter Willis Van Devanter was an Associate Justice of the United States Supreme Court, January 3, 1911 to June 2, 1937.- Early life and career :... announces his intent to retire
	May 24	Steward Machine Company v. Davis Steward Machine Company v. Davis Steward Machine Company v. Davis, 301 U.S. 548 , was a case in which the Supreme Court of the United States upheld the unemployment compensation provisions of the Social Security Act of 1935. The Act established a national taxing structure designed to induce states to adopt laws for funding and...			Social Security Social Security (United States) In the United States, Social Security refers to the federal Old-Age, Survivors, and Disability Insurance program.The original Social Security Act and the current version of the Act, as amended encompass several social welfare and social insurance programs... tax constitutional
	May 24	Helvering v. Davis Helvering v. Davis Helvering v. Davis, 301 U.S. 619 , was a decision by the United States Supreme Court, which held that Social Security was not a contributory insurance program. The Court defended the constitutionality of the Social Security Act of 1935, requiring only that welfare spending be for the common benefit...
	Jun 2	Van Devanter retires
	Jul 14	Senate Majority Leader Joseph T. Robinson dies
	Jul 22	JPRB37 referred back to committee by a vote of 70–20 to strip "court packing" provisions
	Aug 19	Senator Hugo Black Hugo Black Hugo Lafayette Black was an American politician and jurist. A member of the Democratic Party, Black represented Alabama in the United States Senate from 1927 to 1937, and served as an Associate Justice of the Supreme Court of the United States from 1937 to 1971. Black was nominated to the Supreme... sworn in as Associate Justice Associate Justice of the Supreme Court of the United States Associate Justices of the Supreme Court of the United States are the members of the Supreme Court of the United States other than the Chief Justice of the United States...

Sources

Minton, Sherman
Sherman Minton
Sherman "Shay" Minton was a Democratic United States Senator from Indiana and an Associate Justice of the Supreme Court of the United States. He was the most educated justice during his time on the Supreme Court, having attended Indiana University, Yale and the Sorbonne...

Reorganization of Federal Judiciary; speeches of Hon. Sherman Minton of Indiana in the Senate of the United States, July 8 and 9, 1937. Washington, D.C.: Government Printing Office, 1937.

External links

FDR's Fireside Chat on the bill
1990 Eyewitness Account of Law Clerk Joseph L. Rauh, Jr. (Link live as of September 15, 2008)

The source of this article is wikipedia, the free encyclopedia. The text of this article is licensed under the GFDL.

New Deal

Roosevelt's Justice Department

Jurisprudential debate

The New Deal goes to court

Panama Refining Co. v. Ryan

Gold Clause Cases

Railroad Retirement Board v. Alton Railroad Co.

Black Monday

Humphrey's Executor v. United States

Louisville Joint Stock Land Bank v. Radford

Schechter Poultry Corp. v. United States

Roosevelt reacts

Further setbacks

United States v. Butler

Carter v. Carter Coal Co.

Ashton v. Cameron County Water Improvement Dist. No. 1

Morehead v. New York ex rel. Tipaldo

Antecedents to the Judicial Procedures Reform Bill

Searching out solutions

Unexpected answer

Contents

Public Reaction

House action

Senate hearings

White Monday

West Coast Hotel v. Parrish

Van Devanter retires

Committee report

Floor debate

Death of Robinson and defeat

Consequences

Timeline

Sources

External links