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This Day in History: FDR’s court-packing plan

On this day in 1936, a presidential race between incumbent Democratic President Franklin D. Roosevelt and Republican challenger Alf Landon enters its final weeks. FDR would use momentum from his re-election to push for his so-called “court-packing” plan.

The phrase has been in the news lately, of course. Perhaps it is worth asking what “court-packing” meant, at least as a historical matter? In 1937, the phrase was a reference to FDR's proposal to change the size of the Supreme Court.

FDR's proposal was made mere weeks after his 1937 inauguration. He proposed the idea to Congress, claiming that he wanted to ease the burden on federal judges.

Let’s just say that not everyone believed him.

At the time, FDR was faced with a Supreme Court that was repeatedly striking down his New Deal measures. The court-packing proposal would have allowed FDR to appoint up to six new Supreme Court Justices.

Coincidence? Or an attempt to influence the Court’s rulings?

The issues before the Court were important ones with ramifications that continue to reverberate today: One important issue that repeatedly cropped up concerned application of the Commerce Clause of the U.S. Constitution. That Clause allows Congress to regulate INTERstate commerce. (i.e. commerce that crosses state boundaries) It does *not* give Congress authority to regulate INTRAstate commerce. (i.e. commerce that remains within the boundaries of a state)

In other words, our federal government does not have unlimited power to act for the general good of the people. It can act only where power has specifically been granted to it. Thus, without an explicit delegation of authority, Congress is powerless to regulate the internal matters of a state.

Initial Supreme Court decisions recognized the limits of congressional power and struck down many of FDR’s New Deal measures, holding that the Commerce Clause did not authorize the federal government to act.

Unfortunately, FDR was not so easily thwarted. Following his landslide victory in 1936, he decided to push for his court-packing plan. But he made at least one strategic mistake: He failed to tell his Vice President and other Democratic leaders about the proposal until he was already prepared to send it to Congress. Vice President Garner was influential in the Senate, and he refused to help the measure along. He let it be known that he disapproved of the measure.

Apparently, he even held his nose and gave a “thumbs-down” sign when the bill was introduced on the Senate floor.

In the end, the court-packing plan became unnecessary. Justice Owen Roberts switched his vote in a case that upheld the constitutionality of minimum wage legislation. He began to consistently side with FDR’s programs in future cases.

To be fair, Roberts’s motives are disputed. But whatever the cause, his change of heart became known as the “switch in time that saved nine” because FDR dropped his (by then faltering) court-packing plan soon thereafter.

No President since FDR has made any serious attempt to change the size of the Supreme Court, but we are still living with the ramifications of these politics in 1937: The Commerce Clause has never been restored to its original boundaries.

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