With lifetime appointments, it’s not unusual for Supreme Court justices to serve well past the average U.S. retirement age of 63. (Justice Anthony Kennedy, 81, announced his retirement this week; Ruth Bader Ginsberg is 85; Stephen Breyer turns 80 in August; Antonin Scalia died while still on the court in 2016 at age 79).
But in the late 1930s, President Franklin D. Roosevelt wanted to put restrictions on the court when it came to age. Largely seen as a political ploy to change the court for favorable rulings on New Deal legislation, the Judicial Procedures Reform Bill of 1937, commonly referred to as the “court-packing plan,” was Roosevelt’s attempt to appoint up to six additional justices to the Supreme Court for every justice older than 70 years, 6 months, who had served 10 years or more.
Dr. David B. Woolner, senior fellow and resident historian of the Roosevelt Institute and author of The Last 100 Days: FDR at War and at Peace, says it’s important to note the timing of this bill, which took place during the Great Depression. “We were in the midst of the worst economic crisis in our history,” he says. “Roosevelt’s response to this economic crisis was to engage in a series of programs designed to manage a capitalist system in such a way as to make it work for the average American. And because he wasn’t particularly ideological, he was willing to try all kinds of things.”
Over the course of the depression, Roosevelt was pushing through legislation and, beginning in May 1935, the Supreme Court began to strike down a number of the New Deal laws. “Over the next 13 months, the court struck down more pieces of legislation than at any other time in U.S. history,” Woolner says.
Roosevelt’s first New Deal program—in particular, its centerpiece, the National Recovery Administration, along with parts of the Agricultural Adjustment Act—had been struck down by unanimous and near-unanimous votes. This frustrated Roosevelt and got him thinking about adding justices to the court, says Peter Charles Hoffer, history professor at the University of Georgia and author of The Supreme Court: An Essential History. When he won the election of 1936 in a landslide, Roosevelt decided to float the plan.
It met instant opposition.
While it was never voted on in Congress, the Supreme Court justices went public in their opposition to it. And a majority of the public never supported the bill, either, says Barbara A. Perry, director of presidential studies at the University of Virginia’s Miller Center.
“Congress and the people viewed FDR’s ill-considered proposal as an undemocratic power grab,” she says. “The chief justice (Charles Evans Hughes) testified before Congress that the Court was up to date in its work, countering Roosevelt’s stated purpose that the old justices needed help with their caseload.”
“It was never realistic that this plan would pass,” Perry says. “Roosevelt badly miscalculated reverence for the Court and its independence from an overreaching president.”
Congress, however, does have the prerogative to change the make-up of the Court, Woolner points out, and past leaders have called for similar actions, including President Theodore Roosevelt, in his famous 1910 “New Nationalism” speech. “So for Roosevelt to engage in court reform is not unprecedented,” Woolner says. “But what is unprecedented is the way he went about it.”
“He really bungled it politically.”
Hoffer says historians disagree about what happened next. Some argue that Justice Owen Roberts had shifted in his opinion of the New Deal before the election, giving later New Deal acts like social security, the National Labor Relations Act and other economic regulations his vote on the Court. That shifted the majority to favor federal welfare and regulatory enactments. Others contend that the threat of adding justices to the Court was enough to swing Roberts’ vote.
In the end, Perry says, two members of the Court switched to a pro-New Deal position, known as “the switch in time that saved nine.”
“And FDR eventually packed the Court the old-fashioned way,” she says, “through attrition, naming nine members.”