FDR A Four Term Progressive--Part 5

The Roosevelt Administration was absolutely furious with the Supreme Court decision on the Agricultural Adjustment Act. The primary reason for the anger was that the Social Security Act was coming on line and they feared that the Court would declare it unconstitutional. Roosevelt was so irate that he took to calling the justices the "nine old men" and that something needed to be done to stop them.

In 1937 Congress passed the Judiciary Reorganization Bill. This Bill soon came to be known as the Court Packing Bill. It contained a lot of provisions. The primary one gave the President the right to add extra judges to the Court for every judge over the age of 70.5 years of age. This would have given Roosevelt the power to appoint 6 new justices. It was all done as a counter to the Court declaring a pile of New Deal programs unconstitutional.

Normally a Justice is replaced upon his retirement or death. Roosevelt, however, was extremely impatient and decided to force the Court's hand after Butler. He turned to Article III of the Constitution and found that it was silent on how many justices could be on the Supreme Court the exception being that there could be but one Chief Justice because he was mentioned in the Constitution under Article 1 section 3. There was also precedent in that there had been changes numerous times to the number of justices on the Court

Roosevelt went on offense. He declared that the conservatives on the Court were putting words in the mouth of the Constitution, words that had never been there and it was never the intent of the Founders to have those words. He stated that the Court's decisions were "frustrating" and they were blocking his political and economic programs to bring about an end to the Depression.

Roosevelt had won re-election in 1936 despite the fact that his first New Deal not only failed to end the Depression but came under attack by the Court and those political opponents to its Left. The election victory gave him the courage he needed to take on the Court.

The administration stated that they only wanted the bill in order to assist older justices with their work load. When a justice reached the age of 70.5 years a new younger justice with ten years experience was to be appointed. FDR knew he could count on the Democratic controlled Congress to pass his nominees but first he was going to have to get it by both the Congress and the American public.

The debate in Congress did not go well for Roosevelt. Many Democrats thought this to be a good idea; many thought it wasn't and it certainly was not liked by the Republicans. Meanwhile, those in the press looked on with a jaundiced eye on Roosevelt and questioned his motive. Some pointed out what it was, a grab for power and an attempt to intimidate the Supreme Court of the United States.

Things were not going well for him in the countryside. Public opinion polls showed FDR that the citizens were opposed to this law. Despite those polls, Roosevelt felt that he had them by his side.

On March 9, 1937, he gave his first fireside chat of his second term. In it he noted his true intentions--he wanted a Supreme Court that understood the modern era. Was this Progressive showing his true hand? Was he telling the folks that the centralization of power into the hands of the Executive Branch was the wave of the future.? I believe he was.

As things turned out there was a change in the bill. Support for FDR in the Congress began to slip after the Senate Judiciary Committee hearings. On June 14 that committee presented a report that stated that FDR's plan was stepping all over the principles found in the Constitution. To make matters worse the man Roosevelt selected to get the votes for him in the senate, majority leader Joseph Robinson, had a heart attack and died on the day when the roll call was to be taken. Vice President Garner was charged with the task of telling FDR he did not have the votes in the Senate thus the bill and the plan were dead.

At first glance this appears to be a loss for Roosevelt. However, the Senate did provide him with a revised bill that allowed him to appoint two new judges. He signed it into law on August 26, 1937. He also was going to have to deal with a bunch of conservative Democrats who had looked at the Court as their wall, the place where the New Deal would be stopped. In the end, however, all turned out well for Roosevelt. In his second term, FDR nominated and Congress confirmed five new justices to the Court thus cementing the New Deal into place.

Had the American people gained with this action? The answer is a resounding no. FDR used his position and his popularity to threaten the members of the Court. The Court is suppose to be a neutral branch rendering decisions on the constitutionality of laws and no more. This would open the door to put pressure on the Court and for the Judicial activism that we are seeing today.