Court-packing in Context
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There is a curious lacuna in the literature on the Court-packing crisis of 1937. The proposal for reform of the federal judiciary that received the most attention and consideration in that year was, of course, president Franklin D. Roosevelt's proposal to enlarge the membership of the Supreme Court from nine to fifteen justices.1 Yet, both before and throughout the battle over the president's "Court-packing plan," members of Congress introduced a wide variety of alternative measures for addressing their dissatisfaction with recent Supreme Court decisions invalidating various state and federal laws designed to relieve economic distress and stimulate economic recovery.2 Some of these proposals would have taken statutory form, while many others would have amended the Constitution in various respects. In the end, none of these measures was reported out of Committee. Nevertheless, they were the subject of serious discussion in multiple contemporary venues.
Scholarly treatments of the Court-packing episode typically are focused on two related questions: First, what were the Court-packing plan's prospects for ultimate congressional enactment, and second, to what extent, if any, did the pendency of the Court-packing plan affect the outcomes in the Court's major constitutional decisions in the spring of 1937? Perhaps as a consequence of this focus, proposed alternatives to Court-packing tend to be treated as something of a sideshow. Discussion of such proposals typically concentrates on the strategic reasons for which Roosevelt rejected them in favor of his own Court-packing plan. Largely overlooked is the rich contemporary legal, newspaper, and periodical literature in which these alternative measures received sustained legal and policy consideration.3 Similarly, the Senate Judiciary Committee hearings on Roosevelt's bill, at which such proposals also were the subjects of extensive deliberation, routinely receive rather limited exploration. In some cases, discussion is largely confined to the manner in which the bill's opponents used the hearings to delay its ultimate floor consideration.4 Other treatments offer more [End Page 174] fulsome accounts of the arguments made for and against the president's bill but pay little if any attention to the substantive arguments that witnesses raised concerning alternative proposals.5 At a time when proposals for Court reform have resurfaced in public conversation,6 it may prove illuminating to reconstruct the robust discussion of the topic that took place in the 1930s.
Court-packing
On February 5, 1937, President Roosevelt sent Congress a proposal for the reorganization of the federal judiciary. The proposal included a provision for adding an additional justice to the Supreme Court for every sitting justice who had reached the age of 70 years and six months but had not retired. Because there were at the time six justices answering that description, the bill would have enabled Roosevelt to enlarge the Court from nine justices to fifteen, thus assuring himself of what he and his advisors regarded as a "dependable" majority sympathetic to the New Deal.7
Enlarging the membership of the Court of course was not a novel proposal in 1937. Indeed, as recently as January 1936, Minnesota Farmer-Laborite Representative Ernest Lundeen had introduced a bill to expand the Court to eleven justices,8 and Pennsylvania Democratic Representative James L. Quinn's bill had proposed a Court of fifteen.9 Throughout the struggle over Roosevelt's bill, there was much talk of a compromise under which the Court would be expanded to eleven or perhaps twelve justices.10 Yet few bills embodying such a compromise actually were introduced. On February 5, the very day that Roosevelt's Court-packing plan was introduced, now-Senator Lundeen again introduced a bill expanding the Court to eleven.11 Nevada Democratic Senator Pat McCarran introduced amendments to Roose velt's bill fixing the size of the Court at eleven on April 15 and again on May 6.12 On March 12 and May 6, Florida Democratic Senator Charles O. Andrews introduced joint resolutions amending the Constitution to provide for an eleven-justice Court.13 As Andrews later put it, "[i]f the Federal courts are to be fundamentally changed, it should be done without building our judicial house upon the...
