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Court Packing 1937 - Debate
Was Franklin Roosevelt's 1937 Judicial Procedures Reform Bill a legitimate constitutional remedy or an assault on judicial independence?
In February 1937, President Franklin D. Roosevelt proposed legislation that would have allowed him to appoint one additional Supreme Court justice for every sitting justice over the age of 70, up to a maximum of six new seats. The plan emerged after the Court had struck down several major New Deal programs, and it collapsed in Congress by July of that year without a floor vote. Historians, legal scholars, and political theorists have contested ever since whether the proposal was a defensible exercise of democratic authority over an unaccountable judiciary, a naked power grab that threatened constitutional government, or something in between. The debate is complicated by the “switch in time that saved nine” - the apparent shift in Justice Owen Roberts's voting pattern during the same period - which itself remains disputed.
The Plan Was a Legitimate Constitutional Response
Defenders of Roosevelt's proposal argue that it was constitutionally sound, democratically justified, and that critics have mythologized the independence of a Court that was, in practice, already a political institution protecting entrenched economic interests.
The Constitution sets no limit on the number of Supreme Court justices. Congress has changed the Court's size seven times in American history, and the size stood at ten as recently as 1863. Advocates note that Roosevelt's critics treated a nine-member Court as though it were a constitutional fixture, when it was a statutory choice Congress could revise at any time.1)
On the democratic legitimacy question, proponents point to Roosevelt's 1936 landslide re-election as a mandate for the New Deal agenda. A majority of justices appointed by presidents who had lost elections were blocking programs enacted by overwhelming congressional majorities and ratified by the electorate. From this vantage point, the Court was the countermajoritarian actor, not Roosevelt.2)
Defenders also argue that the Court's jurisprudence in the Lochner era through the mid-1930s was itself an exercise in judicial activism - reading laissez-faire economic doctrine into the Due Process clause in ways that had no grounding in constitutional text or original understanding. Programs struck down, including the National Recovery Administration and the Agricultural Adjustment Act, addressed genuine economic emergencies that the existing constitutional framework was failing to accommodate.
Some scholars in this tradition go further, arguing that Roosevelt was right on the merits and simply used bad political tactics. The subterfuge of framing the bill as a judicial efficiency measure - citing the age and workload of sitting justices rather than their decisions - undercut the democratic argument he should have made openly.3)
The Plan Was an Attack on Judicial Independence
Critics of the proposal argue that regardless of its technical constitutionality, Roosevelt's court-packing plan would have subordinated an independent constitutional branch to short-term political majorities, setting a precedent that could be exploited by any future president with a hostile Court.
The most significant opposition came not from Republicans but from Roosevelt's own party. Senate Judiciary Committee Chairman Henry Fountain Ashurst initially blocked the bill, and Senate Majority Leader Joseph T. Robinson, tasked with shepherding it through, died of a heart attack during the effort. The decisive blow was a report from the Senate Judiciary Committee - controlled by Democrats - calling the plan “a needless, futile, and utterly dangerous abandonment of constitutional principle.”4) Critics argue this bipartisan resistance reflected genuine concern that the norm of judicial independence, once broken by one party, could not be selectively restored.
Opponents also challenge the framing that the Court was simply obstructing the popular will. They note that several New Deal programs struck down had genuine constitutional defects: the National Industrial Recovery Act delegated essentially unlimited legislative authority to the executive, and the original Agricultural Adjustment Act imposed a processing tax with no clear constitutional basis. The Court, on this view, was doing its job.5)
Conservative and libertarian critics add that the programs Roosevelt sought to protect were themselves expansions of federal power that set precedents with long-term costs to federalism and economic liberty. Packing the Court to validate those expansions compounded rather than corrected the underlying constitutional problem.
From a separation-of-powers standpoint, critics argue that the power to add justices when the existing ones rule against you is functionally the power to nullify judicial review whenever a president has a willing congressional majority. The restraint that makes constitutional courts meaningful depends on political actors choosing not to exercise every power legally available to them.
The "Switch in Time" and Its Interpretive Significance
A contested sub-question shapes how both sides read the episode. Justice Owen Roberts voted to uphold a Washington state minimum wage law in West Coast Hotel Co. v. Parrish (decided March 29, 1937, argued before the court-packing announcement) and later voted to sustain the National Labor Relations Act and the Social Security Act. This shift - popularly attributed to political pressure from the court-packing threat - gave rise to the phrase “the switch in time that saved nine.”
Revisionist scholarship, particularly Barry Cushman's structural analysis, argues that Roberts's vote in Parrish had been cast before the court-packing plan was announced and that the evolution in the Court's jurisprudence reflected internal doctrinal development rather than capitulation to political pressure.6) If correct, this complicates both sides: it weakens the narrative that Roosevelt's threat was effective, but it also weakens the narrative that he was attacking a functioning institution, since the Court was already moving.
Defenders of the traditional account, including William Leuchtenburg, maintain that the circumstantial case for political influence on Roberts remains strong, and that the timing of the announcement versus the vote - while technically prior - does not rule out awareness of the political environment in which the case was argued.7)
Points of Agreement
Scholars across the spectrum generally agree on several descriptive points: that the plan was constitutionally permissible in a narrow technical sense; that it was defeated primarily by intra-Democratic opposition rather than Republican resistance; that the Court's jurisprudence did shift during 1937 in ways favorable to the New Deal; and that the episode established a lasting informal norm against Court expansion that has persisted across subsequent administrations and congressional majorities, including those with incentive to break it.
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Footnotes
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