• Jonathan Di Carlo

How Roosevelt’s Failed Court Reform Plan Changed the Constitution

When Franklin Delano Roosevelt was elected to the presidency of the United States at the height of the Great Depression, his administration enacted sweeping legislative reform that became known as the New Deal program. The economic and social crisis brought on by the Great Depression provided the Roosevelt administration with significant public and Congressional support to expand the power of the executive branch of the United States government to meet the crisis. As a result, a significant number of laws passed in the early months of President Roosevelt’s first term embodied social reforms that were a departure from previous practices in the United States. However, the administration was eventually confronted with a powerful opposition to its legislative ambitions in the judicial branch of the government through the use of injunctions to block the enactment of laws that were challenged on Constitutional grounds. Thus, while cases involving New Deal legislation made their way to the Supreme Court of the United States, the administration was often impeded from responding, in a manner that Roosevelt felt was necessary, to the economic crisis. Further, when the cases involving the New Deal program finally reached the Supreme Court, the Roosevelt administration was met with an onslaught of judicial decisions that invalidated laws and overturned executive decisions. These judicial decisions exacerbated a confrontation that had been decades in the making between the Executive and the Congress on the one hand, and the Judiciary, on the other. The Supreme Court’s attack on New Deal legislation demonstrated the institution’s increasing tendency to cause the federal system of government to be judiciary-centric by relying on the Supreme Court to provide the final word on legislation. This paper will argue that the Court Packing controversy caused by Roosevelt’s proposed reform legislation represented a culmination of an overly powerful judiciary whose Constitutional viewsconsistently diverged from the common American citizen. Further, Roosevelt's court-packing plan inadvertently reinforced the judiciary as an institution foundational to the American democratic system through its failure to pass through Congress, while simultaneously upholding the ability of the executive and legislative branches to expand its views of the Constitution to lead the nation through a crisis.


The Court Packing controversy created through President Roosevelt's proposed judicial reform bill and the ensuing constitutional crisis in 1937 represented the culmination of conflict that had been growing for decades between the Judicial Branch of the United States government on the one hand and the executive and legislative branches on the other. D. Grier Stephenson Jr. characterized this crisis as a dividing line between the "old Court" and the "new (or modern) Court" because it represented a judicial revolution of an "irresistible force" meeting an "immovable object". The former being Roosevelt's audacious New Deal program, which vastly expanded federal power to manage the Great Depression and the latter being the Supreme Court who, under the leadership of Chief Justice Charles Evans Hughes, invalidated many of Roosevelt's New Deal programs.[1] The conflict between the Federal Judiciary and the two other branches of government had been percolating throughout the nineteenth century and well into the twentieth century prior to Roosevelt's decision to take action in 1937. As such, both Roosevelt and Attorney General Homer S. Cummings repeatedly referenced prior legislative attempts—under Republican leadership—to reform the Federal Courts in an attempt to bolster bipartisan support for the proposal. For example, in his opening remarks to the Senate Committee on the Judiciary on March 10, 1937, Cummings compared Roosevelt's bill to the 1869 House Bill, H.R. 156, which would have authorized the President to appoint an additional judge for every federal judge that did not retire one year after reaching the age of seventy.[2] In his public statements and comments to the press, Roosevelt often tried to show that there was a legitimate desire for court reform that existed prior to the invalidation of many New Deal laws. In one press conference, Roosevelt told the press, “there was a lot of feeling back in T.R.’s time about the need for judicial reform”, referring to the large portion of the American population that was advocating for reform during Ted Roosevelt’s presidency.[3] Further, William Leuchtenburg argues that throughout the 1920s, progressive animus towards the Taft Court led many liberal critics to believe that the Justices spoke for the rich and upper-classes.[4] The public sentiment towards the Court in the decades preceding the Great Depression, especially aggravated in the minds of progressives throughout the 1920s, became further disillusioned when the Supreme Court began to rule on challenges to New Deal legislation in its 1935 and 1936 terms.


When the Supreme Court began to issue decisions on cases involving New Deal legislation, it demonstrated its reluctance to acquiesce to the broader view of executive power that was espoused by Roosevelt and the New Dealers. As Leuchtenburg notes, the Roosevelt administration employed any mechanism possible to postpone tests of constitutionality pertaining to the legislation of the first hundred days which led to a period of nervous calm that was shattered in January of 1935.[5] In Panama Refining Co. v. Ryan, by a vote of 8-1, the Court overturned §9(c) of Title I of the National Industrial Recovery Act which delegated to the President the power to regulate the interstate transportation of oil and products made with oil under the “Interstate Commerce Clause”. Writing on behalf of the Court, Chief Justice Hughes wrote:


If § 9 (c) were held valid, it would be idle to pretend that anything would be left of limitations upon the power of the Congress to delegate its law-making function … the Congress could at will … transfer that function to the President or other officer or to an administrative body. The question is not of the intrinsic importance of the particular statute before us, but of the constitutional processes of legislation which are an essential part of oursystem of government.[6]


In so stating, the Court provided a clear statement on its views of expansive executive power irrespective of the national crisis brought on by the depression to both the legislative branch, dominated by New Deal Democrats, and to the President. As the decision pertained to a procedural statute within the law, the administration was not greatly concerned with the decision itself; however, the objection that the court espoused against Congressional delegation of regulatory power to the executive, concerned members of the administration who feared that the same legal principle could be applied to cases relating to the gold legislation which were making their way to the Court. Additionally, on May 6, 1935, the Supreme Court released the decision in Retirement Board v. Alton R. Co. in which they overturned the Railway Retirement Act that had established a pension for railway workers to be deposited to the U.S. Treasury and managed by an independent entity within the executive branch. The act drew its legislative authority from the Interstate Commerce Clause of the Constitution. However, the court found that this violated the due process rights of the railway companies under the Fifth Amendment. The 5-4 majority stated, "a pension plan thus imposed is in no proper sense a regulation of the activity of interstate transportation", adding that the law was intended on providing social reform rather than "a rule or regulation of commerce and transportation between states, but as a means of assuring a particular class of employees against old age dependency."[7] This decision foreshadowed the impending conflict between the Roosevelt administration and the Judiciary not only because it overturned a New Deal law, but because the decision directly impacted an important interest group that could support changing the court's power in the future.[8] While the Panama Refining Co and Retirement Board decisions were not the most impactful on New Deal legislation, they marked the beginning of a two-year period whereby the Court's opinions chastised the Roosevelt administration's New Deal legislation.


Throughout the eighteen months which followed, the Supreme Court handed down decisions that overturned New Deal legislation or overruled the executive and legislative branches, further emphasizing its place as an equal and powerful institution within the separation of powers doctrine and the nation’s constitutional structure. One of the most impactful moments of contention between the Supreme Court and the Roosevelt administration occurred when the Court handed down three 9-to-0 decisions against the administration on May 27, 1935, which became known collectively as “Black Monday”.[9] The decisions represented an opportunity for the Justices to voice their displeasure for the way that Roosevelt was governing the nation through the crisis and for the court to reinforce—as an institution of government—judicial-centric federalism. For instance, in Schechter Corp. v. United States, the Court invalidated the National Industrial Recovery Act because the law delegated to the executive, the power to fix wages. The Court seemed to grow weary of the centralizing tendency of the administration and its recurring expansive approach to the commerce clause. Writing for the majority, Chief Justice Hughes said that “the authority of the federal government may not be pushed to such an extreme as to destroy the distinction … between commerce ‘among the several States’ and the internal concerns of a State.” He added that “the attempt … to fix the hours and wages of employees [of] intrastate business was not a valid exercise of federal power.”[10] The stinging rebuke of expansive executive power, even to deal with the Great Depression, together with the demise of the NIRA, a foundational legislative component of the New Deal, led the president to believe—as Leuchtenberg has argued—that the Federal government’s power to meet the crisis had been stripped away. [11] These decisions signalled to Roosevelt that the Supreme Court was not going to tolerate unconventional delegation of executive power to the President to meet the crisis thereby placing his legacy in jeopardy.


The other two opinions that came down on "Black Friday" further signalled to the President that the Supreme Court was going to continue to impede the progress of his New Deal program by exerting its Constitutional power of judicial review to narrowly interpret the constitution irrespective of the economic crisis. For example, the Frazier-Lemke Farm Bankruptcy Act, which provided protections to farmers against foreclosures by banks, was overturned by the Court in Louisville Bank v. Radford, citing unconstitutional deprivation of private property without due process under the Fifth Amendment.[12] This decision, like Retirement Board v. Alton, involved the Court restraining the executive branch to the detriment of another interest group within the United States—farmers—that had been adversely affected by the economic crisis the legislation was intent on curtailing. This allowed Roosevelt to assume that more middle-class Americans, like the railway workers, would support the pursuit of court reform in the event that one became necessary. As Leuchtenberg notes, if the Court continued to overturn New Deal legislation, more special interest groups would be aggrieved by its conduct, which led Roosevelt to remain silent on the matter through the following election in 1936.[13] The final case handed down on “Black Friday” was in Humphrey’s Executor v. United States in which the Court ruled that Roosevelt’s dismissal of William Humphrey without cause, an appointee to the Federal Trade Commission, was outside of the scope of the President’s power. The facts of the case clearly demonstrate that Roosevelt removed Humphrey because he was not supportive of the President’s New Deal policies in his official capacity, which the majority of the Court viewed as another overly expansive act by the executive. In the majority opinion, all nine justices said, “we think it plain under the Constitution that illimitable power of removal is not possessed by the President.”[14] Like the other “Black Friday” decisions and those New Deal decisions which were already published, the Court—with a majority of five to nine justices—implicitly charged that the president’s actions and legislation embodied dictatorial tendencies that fell outside of the Constitutional mandate of the executive. Further, when considering the history of the Supreme Court’s actions up until that point in American history, these decisions demonstrated that the Justices intended to continue to push the nation towards a judiciary-centric expression. As such, the Court increasingly and repeatedly released legal opinions that demonstrated that an expansive federal response to a crisis as significant as the Great Depression, supported by a large portion of the nation, was insufficient to legitimize an expanded view of executive power under the constitution. Thus, the Court's continued abrasive posture towards the New Deal legislation that was helping middle- and lower-class Americans led to a growing contention between the Court and Roosevelt undoubtedly laid the groundwork for an eventual response from the President.


During this onslaught of judicial decisions, in which the Supreme Court overturned or curbed an enormous number of New Deal laws and policies, the President focused on the election of 1936, as he believed that the more the Court responded to social and economic reform in this manner, the more Americans would be aggrieved by the institution come election time. Notwithstanding the Presidential campaign, Roosevelt knew that a majority of the justices saw themselves as key figures in a judicial-centric federal system that needed to protect and restrain expansive federal power. Gregory Caldeira notes that during 1935-36, Roosevelt became increasingly aware of the Court’s resistance to the New Deal and that four to five of the justices opposed the view that national and local governments possessed the constitutional power to take the actions that Roosevelt believed were necessary to recover the national economy.[15]Thus, with a majority of justices in opposition to his New Deal program, Roosevelt quietly began to consider feasible options for court reform that would make the justices more amenable to his policies. After a December 27, 1935, Cabinet meeting, Harold Ickes noted in his diary that the Supreme Court question was brought up for discussion stating, "clearly, it is running in the President's mind that substantially all of the New Deal bills will be declared unconstitutional." Ickes then summarized Roosevelt's three possible plans for dealing with the Court: firstly, by "packing the Supreme Court", secondly, by crafting Constitutional amendments to overcome the Court's objections to New Deal legislation, and lastly, passing a constitutional amendment which would provide the legislator with a Congressional Veto over the Judiciary.[16]The last option would give the Supreme Court original jurisdiction on matters affecting whether a statute of law is constitutional, which was a power not explicitly provided to the Court in the Constitution. The amendment would also have allowed Congress to pass an overturned law after a Congressional election had elapsed, thereby providing an indirect referendum, at which time the law would no longer be considered unconstitutional. While all three of these would have allowed for the Supreme Court to continue to make decisions on the Constitutionality of legislation, the latter two would have been much more difficult to put into place due to the amendment process. Leuchtenburg notes that in light of the cases pending on the Court's docket in 1936, such as the AAA processing tax, the President waited to gauge the public's reaction if the Court were to overturn that law as well.[17] Despite the number of New Deal laws that were struck down in the final two years of Roosevelt's first term in office, the President demonstrated a good measure of restraint in planning a counterattack on the Court. His keen awareness of the harm that Supreme Court actions had on groups of Americans such as farmers or railway workers demonstrated that he believed that these aggrieved groups of Americans could help bolster would be public support for a plan to re-assert the dominance of the executive branch within the federal system of government.


Despite the Court’s numerous attacks on New Deal legislation throughout the two years preceding the 1936 election, Roosevelt’s public restraint amidst the adversity of these decisions seemed to pay off with a landslide reelection to a second term where a rebuttal of the Court seemed imminent. The election helped reinforce Roosevelt’s influence within the Democratic party as he won the electoral votes of forty-six out of the forty-eight states and aided the Congressional Democrats to win their largest majorities since 1855 in the House and 1869 in the Senate.[18] In light of the seemingly insurmountable opposition that the Supreme Court had levelled against the New Deal program, the President saw this victory as an unequivocal mandate by the people to oppose the Court’s recent actions. During his State of the Union address on January 6, 1937, he said, “The United States of America, within itself, must continue the task of making democracy succeed.” Once he addressed how the Legislative and Executive branches would do so, he turned to the Court stating, “the judicial branch also is asked by the people to do its part in making democracy successful … we have a right to expect that … [powers] legitimately implied [from the Constitution] shall be made effective instruments for the common good” (emphasis added).[19] Although his address didn’t reference any specific plan, his words clearly implied that the Court had hitherto stood in opposition to democracy and served the instruments of the few rather than the “common good”. Roosevelt echoed this animus towards the Court in a March 9, 1937 fireside chat saying, “The courts … have cast doubts on the ability of the elected Congress to protect us against catastrophe”, adding “it is the American people themselves who expect the third horse to pull in unison with the other two.”[20] The President’s words again pitted the everyday American against the recent actions of the Court by implying that the Court’s decisions were in opposition of the American people. Roosevelt’s repeated use of the general concept of “the people” demonstrates that he viewed his victory as tacit approval of his court reform plans while also demonstrating his view of a federal system whereby the judiciary does not act in stark opposition to the executive.


The theme that the judiciary did not serve the interests of all the American people, which was subtle yet present in Roosevelt’s State of the Union address, was central to President’s plan for reform and as a result, it was embedded in the language used by Cummings in his exchanges with the President when the two were crafting the court reform plan. In a January 23, 1937 letter to the President, Cummings stated, “delay in the administration of justice is the outstanding defect of our federal judicial system" as the litigant "is entitled to assume that the judge is pressing forward … [through] the principle that 'justice delayed is justice denied.'"[21] Cummings then relied on this foundation to reflect how these delays disproportionately affect the “small business man or the litigant of limited means” and how they invite “unwarranted litigation in the hope of forcing an adjustment which could not be secured upon the merits.”[22] The interplay of these two problems was a neat way of intersecting the impediments that the administration had endured through the use of injunctions against New Deal legislation and fiscal constraints that litigation had on lower-class Americans. This was further substantiated in a similar letter that Cummings wrote to the President on February 2, 1937, in which he said that Court legislation was "essential … to bring [justice] within the reach of every citizen."[23] This association reflected Roosevelt’s political calculus prior to the 1936 election, whereby he hoped that the Court’s continual assault of his New Deal program would aggrieve and therefore entice the everyday American to support court reform legislation.


The President's response to more than two years of negative decisions by the Supreme Court, which seemed eager to dismantle his New Deal program and legacy, was a multi-faceted reform plan that provided Roosevelt with enough leverage to offer concessions in negotiations with legislators while maintaining the reform's key component—court-packing. On February 5, 1937, Roosevelt announced his plan to the media prior to it being delivered to Congress, drawing on the letters he received from Cummings. Roosevelt's proposal was anchored in his vision of federalism in which he believed the executive and legislative branches of government were mandated by the American people to direct the course of the nation rather than being subservient to the judicial branch. During his announcement, he articulated this sentiment when quoting from Cummings' letter saying that it is "the duty of the President to advise the Congress in regard to the Judiciary whenever he deems such information or recommendation necessary.”[24] The bill proposed four reforms to the judicial branch, but the key provision of the bill authorized the president to appoint an additional Supreme Court Justice for every justice who had reached seventy years old and six months and had been in their position for ten years or more but did not retire.[25] Gene Gressley has argued that Cummings seized on the issue of the age of judges for its appeal to the administration’s purpose as James C. McReynolds, a conservative justice had proposed a similar reform plan in 1914.[26] Thus, disguised as an initiative to reform the judiciary, Roosevelt’s announcement and the ensuing legislative battle was a clear counterattack responding to the Judiciary’s interference with Roosevelt’s New Deal program—a sentiment that was constantly underpinned with the use of “new blood” rhetoric. In remarks made on the National Broadcasting Network, Senator Joseph C. O’Mahoney of Wyoming stated, “the need for an effective system for the infusion of new blood into the judiciary … was by far … the most important and interesting phase of the [AG’s] testimony” (emphasis added).[27] Stephen Stathis has argued that while the President’s bill was intent on reforming the judiciary, he was primarily motivated by the Court’s recent decisions and he hoped to appoint six additional justices to regain control over the hostility of the third branch of government.[28] The President’s statements about the courts at the State of the Union address, in his February 5 press conference, and his March 9 fireside chat, all reveal a certain hostility that Roosevelt had towards the court which animated his desire to reform it.


Roosevelt's posture towards the court and the secrecy with which the court reform plan was devised, helped foster a narrative that charged the President with dictator-like tendencies both in Congress and across the country. Although the President carefully attempted to frame his court reform proposal in a manner that would obtain the support of Americans that had been disadvantaged by the Court's recent decisions, newspapers across the country excoriated the President for his plan. On the day after the proposal was revealed to the public, the Boston Herald wrote “it is difficult to avoid the conclusion that reform of the Federal judicial system is but a secondary purpose” and the Cleveland Plain Dealer said that the purpose of the plan was “bending the Supreme Court to the will of a popular Executive, backed by a Congress inclined to subserviency.”[29] Similarly, a Boston Globe article headline read, “‘Dictator’ Cry Raised by Bill Providing For More Judges on Supreme Court Bench”, in which a journalist citing former President Hoover said, “the measure had the ‘implication of subordination of the court to the personal power of the Executive’”.[30] The detailed justifications about delayed justice and court backlog that were contained within the Cummings’ letters to the President, which Roosevelt cited to the press, seemed disregarded by the press in favour of controversial headlines that alleged “Court Packing”. Further, despite Roosevelt’s resounding electoral victory the preceding November, many in Congress also saw the plan as Roosevelt’s attempt to destroy judicial independence and the system of Constitutional checks and balances between the judicial, legislative, and executive branches of the United States government.[31] Indeed, Roosevelt’s auspicious reform plan sought to counteract the significant impediment that the Supreme Court had been to the administration’s New Deal plan and it seemed that despite the way the administration sought to frame the reform plan, many in the country continued to view the plan with contempt.

The Supreme Court responded to the reform proposal in two distinct ways, which sought to both repel the President’s accusations of court congestion and ensure that the court would endure as an institution. Throughout American history, it had been customary for the justices to remain predominantly silent in the face of criticism from the public or the other branches of government regarding its judicial decisions. Indeed, while the court reform legislation was being considered in the Senate, as Richard Friedman notes, Chief Justice Hughes told Democratic Senator William King that there was a strong feeling that the Court should not get involved with the controversy either directly or indirectly. However, Hughes also noted that the Court could provide the Judiciary Committee with factual information about the work of the court.[32] Hughes' statement to Senator King demonstrates that there was an awareness among Hughes and the other Justices that the legislation for reform posed a significant risk to the judiciary. Hughes was clearly concerned enough to offer a statement on the facts of the Court's inner workings which he thought could repudiate some of the accusations of inefficiency brought on by the legislation while maintaining independence from the political process. However, at the urging of Justice Brandeis, Hughes agreed to write a letter to the Judiciary Committee through Senator Burton Wheeler, which was read to the committee on March 22, 1937.[33] In the letter, Hughes argued that an increase in size would hinder the efficiency of the Court because “there would be more judges to hear, more judges to confer, more judges to discuss, more judges to be convinced and to decide.”[34] Although the letter was written to represent the perspective of the Court, Hughes' letter was only approved by justices Brandeis and Van Devanter, one conservative-leaning and the other liberal-leaning. As Stathis has argued, the letter represented a significant counterattack from the Court, but there is less agreement among historians about the letter’s actual impact.[35] Friedman argues that the letter had little impact in light of the series of setbacks that Roosevelt would suffer in the weeks that followed as the Court released opinions that favoured New Deal legislation.[36] Regardless of the impact that the Hughes letter had on the Judiciary Committee, the success of the reform plan and public sentiment, the mere existence of a letter signed by two senior justices and authored by the Chief Justice suggests that the court viewed the reform bill as a serious threat to the institution of the judiciary and the space that the Court occupied within the federal system.


The most significant counterattacks to the court reform legislation occurred when the Supreme Court issued a series of decisions pertaining to New Deal legislation that seemed to represent a retreat from its recent jurisprudential history which delegitimized the necessity for legislation that was quite controversial, to begin with. As Friedman notes, when the court upheld a state minimum wage law, the National Labor Relations Act, and partially rejected challenges to the Social Security Act—all by margins of 5-4—the Court gave the appearance that its more recent jurisprudence was impacted by a political calculus.[37] This pattern was not lost on the President who, noting the shift in the Court’s jurisprudence after February 5 said, “a good part of [the reform legislation’s] objective has already been obtained, temporarily.”[38] However, Roosevelt warned that “the country still wants assurance … of the continuity of that objective” adding that “the Constitution is not intended to block social and economic reforms through Court legislation.”[39] When the President made these comments in July of 1937, it was becoming less likely that his reform plan would become, but he was keenly aware that his reform package had at least had some effect on the Court’s jurisprudence when he told the press that the Court’s reversals had expanded Federal spending, tax power, commerce power, and applied a new expanded interpretation of the Due Process clause as it pertained to states.[40] While his comments clearly demonstrate that he did not feel assured that the positive decisions in relation to his New Deal program would necessarily continue, the reform plan clearly had an impact on the direction of the Court during that historical moment. As Robert Dallek notes, the Court’s shift became known as “a shift in time saved nine”, which exemplified how the Roosevelt administration’s desire to have a Supreme Court that was more friendly to the New Deal had occurred outside of the Court reform legislation.[41] Although the legislation was never approved, the underlying challenge to the Court’s supremacy among the three branches of government led to a significant and lasting shift in the Court.


While the “Court Packing” plan was seen as one of the failures of the Roosevelt administration, the fundamental objectives underlying the proposal were achieved in part despite the legislation’s eventual failure in the Senate. The controversy was informed and influenced by an escalating feud between the legislative and executive branch on one side and the judicial branch on the other and the fight that occurred between these two entities seemed inevitable given the social and economic impact that the New Deal program had for large portions of the American populace and the President. Prior to Roosevelt’s court reform plan, the Court seemed intent upon reinforcing a limited constitutional interpretation of executive power and maintaining a judiciary-centric version of federalism that had come to exist in the nation. Thus, the Court’s perspective on the delegation of Congressional power to the executive and the expansive scope with which the Congress interpreted clauses of the constitution, such as the interstate commerce clause, led the Court to staunchly rebuke the administration in its 1935 and 1936 terms. However, the President’s reform plan clearly startled the Court as the Chief Justice offered the Judiciary committee a letter that rebutted the accusations made about the court in the legislation—an action that was uncommon for the Supreme Court to take. In the months which followed, the seeming reversal of Court jurisprudence on New Deal legislation appeased the president by providing him with a court that was more friendly to the New Deal, while allowing the judiciary to maintain its legitimacy as a separate institution of government. Thus, while Roosevelt’s court reform plan may not have culminated in a legislative accomplishment for the Congressional record, it did indirectly lead to a Constitutional realignment in the federal structure that allowed for the economic and social change that so many Americans desperately wanted.


Notes

[1]. D. Grier Stephenson Jr., “The Judicial Bookshelf,” Journal of Supreme Court History 27,

no. 1 (2002): 370. [2]. Homer S. Cummings. “Statement at a Hearing of the Senate Committee on the Judiciary,

March 10, 1937.” Papers of John G. Winant. History of the Franklin D. Roosevelt

Presidency, vol. 1, edited by George T. McJimsey. Bethesda, MD: University publication

of America, 2001, 4; A Bill To amend the judicial system of the United States. 41st

Congress, 1st Session, H.R. 156. [3]. “Transcript of Press Conference #383.” Papers as President: Press Conferences. History of

the Franklin D. Roosevelt Presidency, vol. 1, edited by George T. McJimsey. Bethesda,

MD: University publication of America, 2001, 59. [4]. William E. Leuchtenburg, “The Origins of Franklin D. Roosevelt's ‘Court-Packing’ Plan,”

The Supreme Court Review 1966 (1966): 348. [5]. Leuchtenburg, “The Origins of Franklin D. Roosevelt's ‘Court-Packing’ Plan,” 350. [6]. Panama Refining Co. v. Ryan, 293 U.S. 388, 430 (1935). [7]. Retirement Board v. Alton R. Co., 295 U.S. 330, 374 (1935). [8]. Leuchtenburg, “The Origins of Franklin D. Roosevelt's ‘Court-Packing’ Plan,” 355. [9]. Leuchtenburg, “The Origins of Franklin D. Roosevelt's ‘Court-Packing’ Plan,” 356. [10]. Schechter Corp. v. United States, 295 U.S. 495, 550 (1934). [11]. Leuchtenburg, “The Origins of Franklin D. Roosevelt's ‘Court-Packing’ Plan,” 357. [12]. Louisville Bank v. Radford, 295 U.S. 555 (1935). [13]. Leuchtenburg, “The Origins of Franklin D. Roosevelt's ‘Court-Packing’ Plan,” 347. [14]. Humphrey’s Executor v. United States, 295 U.S. 602, 629 (1935). [15]. Gregory A. Caldeira, “Public Opinion and the U.S. Supreme Court: FDR's Court-packing

Plan,” The American Political Science Review 81, no. 4 (1987): 1140-41. [16]. Secret Diary of Harold L. Ickes 1:495 (1953) in Leuchtenburg, “The Origins of Franklin D.

Roosevelt's ‘Court-Packing’ Plan,” 351. [17]. Leuchtenburg, “The Origins of Franklin D. Roosevelt's ‘Court-Packing’ Plan,” 366. [18]. Marian C. McKenna, “Prelude to Tyranny: Wheeler, F.D.R., and the 1937 Court Fight,”

Pacific Historical Review 62, no. 4 (1993): 415; Leuchtenburg, “The Origins of Franklin D.

Roosevelt's ‘Court-Packing’ Plan,” 380. [19]. Franklin D. Roosevelt, “State of the Union 1937,” January 6, 1937, American History:

From Revolution to Reconstruction and Beyond,

http://www.let.rug.nl/usa/presidents/franklin-delano-roosevelt/state-of-the-union-

1937.php. [20]. Franklin D. Roosevelt, Radio Address of the President, March 9, 1937, Series 1, Box 31,

File 1041, Franklin D. Roosevelt, Master Speech File, 1898-1945, 4-5, FDR Library Digital

Collection, http://www.fdrlibrary.marist.edu/_resources/images/msf/msf01071. [21]. Homer S. Cummings, “Letter to President Roosevelt,” January 23, 1937, Papers of

James Roosevelt, Documentary History of the Franklin D. Roosevelt Presidency, vol. 1,

edited by George T. McJimsey (Bethesda, MD: University publication of America, 2001):

1. [22]. Cummings, “Letter to President Roosevelt,” January 23, 1937, 2. [23]. Homer S. Cummings, “Letter to the President,” February 2, 1937, Franklin D. Roosevelt,

Master Speech File, 1898-1945, Series 1, Box 31, File 1033, FDR Library Digital

Collection, http://www.fdrlib rary.marist.edu/_resources/images/ msf/msf01062. [24]. Franklin D. Roosevelt, “Press Conference #342,” Febraury 5, 1937, Franklin D. Roosevelt,

Master Speech File, Series 1, 1898-1945, FDR Library Digital Collection, 6,

http://www.fdrlibrary.marist.edu/_resources/images/msf/msf01062. [25]. Roosevelt, “Press Conference #342,” 17. [26]. Gene M. Gressley, “Joseph C. O'Mahoney, FDR, and the Supreme Court,” Pacific

Historical Review 40, no. 2 (1971): 185. [27]. National Broadcasting Company, “Remarks by Senator Joseph C. O’Mahoney.” Papers

as President: President’s Personal Files, History of the Franklin D. Roosevelt Presidency,

vol. 1, edited by George T. McJimsey (Bethesda, MD: University publication of America,

2001), 2. [28]. Stephen W. Stathis, "Roosevelt's Court-Packing Plan 1937," in Landmark Debates in

Congress: From the Declaration of Independence to the War in Iraq (Washington, DC:

CQ Press, 2008), 3. [29]. Warren B. Francis, “President Asks Fifteen-Judge Supreme Court in Shake-up,” The Los

Angeles Times(Los Angeles, CA), Saturday, February 6, 1937. [30]. Charles S. Groves, “F.D.R.’s Court Plan Denounced: Hoover, Ely and Others Charge Aim

Is to ‘Pack’ It," The Boston Daily Globe (Boston, MA), Saturday, February 6, 1937. [31]. Stathis, “Roosevelt's Court-Packing Plan 1937,” 3. [32]. Richard D. Friedman, “Chief Justice Hughes’ Letter on Court‐Packing,” Journal of

Supreme Court History 22, no. 1 (1997): 79. [33]. McKenna, “Prelude to Tyranny: Wheeler, F.D.R., and the 1937 Court Fight,” 423. [34]. Friedman, “Chief Justice Hughes’ Letter on Court‐Packing,” 81. [35]. Stathis, “Roosevelt's Court-Packing Plan 1937,” 5. [36]. Friedman, “Chief Justice Hughes’ Letter on Court‐Packing,” 83-84. [37]. Friedman, “Chief Justice Hughes’ Letter on Court‐Packing,” 84. [38]. Franklin D. Roosevelt, “Transcript of Press Conference #383,” Papers as President: Press

Conferences. History of the Franklin D. Roosevelt Presidency, vol. 1, edited by George T.

McJimsey, (Bethesda, MD: University publication of America, 2001), 4. [39]. Roosevelt, “Transcript of Press Conference #383,” 5-6. [40]. Roosevelt, “Transcript of Press Conference #383,” 5. [41]. Robert Dallek, Franklin D. Roosevelt: A Political Life (New York, NY: Penguin Books,

2017), 276.


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