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This article traces the constitutional confrontation between the Franklin D. Roosevelt administration and the United States Supreme Court during the 1930s, culminating in Roosevelt's 1937 court-packing proposal. For broader context, see the New Deal History page and the New Deal Constitutional Crisis main topic page.

The United States Constitution divides federal power among three branches and reserves unspecified powers to the states under the Tenth Amendment. The Supreme Court had, since Marbury v. Madison (1803), exercised the power of judicial review - the authority to strike down legislation it found inconsistent with the Constitution. By the early twentieth century, the Court had developed a body of doctrine limiting federal power under the Commerce Clause and restricting state power to regulate wages and working conditions under a theory of liberty of contract derived from the Fifth and Fourteenth Amendments.

The “Lochner era,” named for Lochner v. New York (1905), saw the Court invalidate numerous labor regulations as violations of that liberty of contract. In Hammer v. Dagenhart (1918), the Court struck down a federal child labor law on Commerce Clause grounds. These doctrinal lines would define the terrain of the 1930s confrontation.

Franklin D. Roosevelt took office in March 1933 amid the Great Depression. Congress passed a sweeping legislative program in the first Hundred Days, including the National Industrial Recovery Act (NIRA), the Agricultural Adjustment Act (AAA), and legislation reorganizing the banking system. The NIRA authorized industry-wide codes of fair competition, set minimum wages and maximum hours, and guaranteed the right to organize labor unions.

Legal challenges reached the Supreme Court rapidly. The Court that Roosevelt faced was composed of four reliably conservative justices - Willis Van Devanter, James McReynolds, George Sutherland, and Pierce Butler, collectively called “the Four Horsemen” by the press - and three justices who more frequently sided with government power: Louis Brandeis, Harlan Fiske Stone, and Benjamin Cardozo. Owen Roberts and Chief Justice Charles Evans Hughes occupied the center.

1935

In January 1935, the Court unanimously struck down the “hot oil” provisions of the NIRA in Panama Refining Co. v. Ryan, finding Congress had unconstitutionally delegated legislative power to the executive without adequate standards.

In May 1935 - a period the press dubbed “Black Monday” - the Court issued three unanimous decisions against the administration. In Humphrey's Executor v. United States, the Court ruled Roosevelt could not remove a Federal Trade Commissioner at will. In Louisville Joint Stock Land Bank v. Radford, the Court struck down the Frazier-Lemke Farm Mortgage Act. Most consequentially, in Schechter Poultry Corp. v. United States, the Court invalidated the NIRA in its entirety, holding that Congress had delegated legislative power without intelligible standards and that the regulated activity - the slaughter and sale of poultry in New York - was not “interstate commerce” within the meaning of the Commerce Clause.

Roosevelt responded publicly with irritation, telling reporters that the Schechter decision had returned the country to “the horse-and-buggy definition of interstate commerce.”

1936

In January 1936, the Court struck down the AAA's processing tax scheme in United States v. Butler (6-3), with Roberts writing for the majority that the tax and spending program invaded powers reserved to the states. Stone, joined by Brandeis and Cardozo, dissented sharply, accusing the majority of “a tortured construction of the Constitution.”

In May 1936, the Court struck down the Bituminous Coal Conservation Act in Carter v. Carter Coal Co., again on Commerce Clause and delegation grounds.

In June 1936, in Morehead v. New York ex rel. Tipaldo, the Court struck down New York's minimum wage law for women (5-4), reaffirming the liberty-of-contract doctrine. The decision drew public criticism, including from Republicans.

By the end of 1936, the Court had invalidated major pieces of New Deal legislation and appeared poised to strike down the National Labor Relations Act (NLRA) and the Social Security Act, both enacted in 1935.

Roosevelt won re-election in November 1936 by a historic landslide, carrying 46 of 48 states. He interpreted the result as a popular mandate.

On February 5, 1937, Roosevelt submitted to Congress the Judicial Procedures Reform Bill. The proposal authorized the President to appoint one additional Supreme Court justice for each sitting justice over the age of seventy who declined to retire, up to a maximum Court size of fifteen. Six sitting justices were over seventy, including all four Horsemen and Brandeis. The stated justification was the Court's workload; critics immediately identified the true purpose as diluting the votes of hostile justices.

Attorney General Homer Cummings had developed the proposal in secret. Roosevelt had not consulted congressional leaders in advance. Senate Judiciary Committee Chairman Henry Ashurst, a Democrat, had publicly opposed court-packing only months earlier and was visibly blindsided.

In March 1937 - before the Senate had voted - the Court decided West Coast Hotel Co. v. Parrish (5-4), upholding Washington State's minimum wage law for women. Roberts, who had voted to strike the nearly identical New York law in Tipaldo, joined the majority. The decision was announced March 29; the conference vote had taken place in conference before Roosevelt's February 5 announcement, though the precise timing was not publicly known at the time.

In April 1937, the Court upheld the NLRA in NLRB v. Jones & Laughlin Steel Corp. (5-4), sustaining a broad reading of the Commerce Clause. Roberts again joined the majority.

In May 1937, Justice Van Devanter announced his retirement, giving Roosevelt his first vacancy.

The Senate Judiciary Committee reported the court-packing bill unfavorably in June 1937 by a vote of 10-8, calling it “a needless, futile and utterly dangerous abandonment of constitutional principle.” The full Senate voted 70-20 in July to recommit the bill, effectively killing it.

Roosevelt lost the legislative battle. He had, however, secured the doctrinal shift. Over the following years he appointed eight justices, reshaping the Court entirely.

In 1937 and after, the Court sustained the Social Security Act (Steward Machine Co. v. Davis; Helvering v. Davis), the NLRA, the Fair Labor Standards Act (United States v. Darby Lumber Co., 1941), and an expansive reading of the Commerce Clause (Wickard v. Filburn, 1942, which sustained federal regulation of wheat grown and consumed entirely on a single farm).

The Court did not explicitly overrule Lochner until West Coast Hotel. Hammer v. Dagenhart was explicitly overruled in Darby. The liberty-of-contract doctrine effectively ceased to be applied to economic regulation.

The Four Horsemen all left the Court by 1941 - Van Devanter (retired 1937), Sutherland (retired 1938), Butler (died 1939), McReynolds (retired 1941).

Whether Justice Roberts's shift in West Coast Hotel was a response to Roosevelt's political pressure or a jurisprudentially independent move decided before the court-packing proposal was announced remains disputed among constitutional historians; see New Deal Constitutional Crisis - Debate.

Whether the Lochner-era Court was applying a principled constitutional doctrine or imposing laissez-faire economic preferences under the guise of legal interpretation is a long-running dispute in legal historiography; see Lochner Era - Originalist Viewpoint and Lochner Era - Progressive Viewpoint.

Whether Roosevelt's court-packing defeat constituted a political failure offset by substantive victory, or a significant institutional setback, is contested; see New Deal Constitutional Crisis - Debate.

Whether the post-1937 Commerce Clause expansion represented a correct reading of the constitutional text or a politically motivated abandonment of federalism limits is disputed; see Commerce Clause - Constitutional Consensus.

1. Panama Refining Co. v. Ryan, 293 U.S. 388 (1935). 2. Humphrey's Executor v. United States, 295 U.S. 602 (1935). 3. Schechter Poultry Corp. v. United States, 295 U.S. 495 (1935). 4. Roosevelt press conference, May 31, 1935. Quoted in William E. Leuchtenburg, Franklin D. Roosevelt and the New Deal (Harper & Row, 1963), p. 145. 5. United States v. Butler, 297 U.S. 1 (1936). Stone dissent at 87. 6. Carter v. Carter Coal Co., 298 U.S. 238 (1936). 7. Morehead v. New York ex rel. Tipaldo, 298 U.S. 587 (1936). 8. Senate Judiciary Committee, Reorganization of the Federal Judiciary: Adverse Report, S. Rep. No. 711, 75th Cong., 1st Sess. (1937), p. 23. 9. West Coast Hotel Co. v. Parrish, 300 U.S. 379 (1937). On the conference vote timing, see Barry Cushman, Rethinking the New Deal Court (Oxford University Press, 1998), ch. 1. 10. NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1 (1937). 11. Steward Machine Co. v. Davis, 301 U.S. 548 (1937); Helvering v. Davis, 301 U.S. 619 (1937). 12. United States v. Darby Lumber Co., 312 U.S. 100 (1941). 13. Wickard v. Filburn, 317 U.S. 111 (1942). 14. Leuchtenburg, Franklin D. Roosevelt and the New Deal, ch. 10, remains the standard narrative account. 15. Jeff Shesol, Supreme Power: Franklin Roosevelt vs. the Supreme Court (Norton, 2010), provides detailed legislative history of the court-packing fight. 16. Cushman, Rethinking the New Deal Court, offers the principal revisionist account of Roberts's shift.