With lifetime appointments, it鈥檚 not unusual for Supreme Court justices to serve well past the average U.S. retirement age of 63. (Ruth Bader Ginsberg died at age 87 while still serving on the court and Antonin Scalia died at age 79 while still a Supreme Court justice.)
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 鈥渃ourt-packing plan,鈥 was Roosevelt鈥檚 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鈥檚 important to note the timing of this bill, which took place during the Great Depression. 鈥淲e were in the midst of the worst economic crisis in our history,鈥 he says. 鈥淩oosevelt鈥檚 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鈥檛 particularly ideological, he was willing to try all kinds of things.鈥
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. 鈥淥ver the next 13 months, the court struck down more pieces of legislation than at any other time in U.S. history,鈥 Woolner says.
Roosevelt鈥檚 first New Deal program鈥攊n particular, its centerpiece, the National Recovery Administration, along with parts of the Agricultural Adjustment Act鈥攈ad 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鈥檚 Miller Center.
鈥淐ongress and the people viewed FDR鈥檚 ill-considered proposal as an undemocratic power grab,鈥 she says. 鈥淭he chief justice (Charles Evans Hughes) testified before Congress that the Court was up to date in its work, countering Roosevelt鈥檚 stated purpose that the old justices needed help with their caseload.鈥
鈥淚t was never realistic that this plan would pass,鈥 Perry says. 鈥淩oosevelt badly miscalculated reverence for the Court and its independence from an overreaching president.鈥
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 鈥淣ew Nationalism鈥 speech. 鈥淪o for Roosevelt to engage in court reform is not unprecedented,鈥 Woolner says. 鈥淏ut what is unprecedented is the way he went about it.鈥
鈥淗e really bungled it politically.鈥
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 鈥渢he switch in time that saved nine.鈥
鈥淎nd FDR eventually packed the Court the old-fashioned way,鈥 she says, 鈥渢hrough attrition, naming nine members.鈥
