Episode 147: The Court Packing Crisis

[00:00:00] Ben Wright: This is 15 Minute History, a podcast for educators, students, and anyone interested in history, featuring the minds and voices of the University of Texas at Austin.

In 1937, America was gripped by a political crisis that centered on age, partisanship, and the balance of power between the three branches of government. Frustrated by a series of losses up and down the courts, President Franklin Roosevelt concocted a novel and highly controversial remedy. If aging, obstructionist Supreme Court justices refuse to retire, well, let’s just expand the court from 9 to 15 members.

The plan kicked off a debate in Congress that raised tempers and transcended party lines. Stepping into the maelstrom was Texas Congressman Hatton Sumners, chair of the House Judiciary Committee. Sumners was an ally of Roosevelt, but an opponent of the court packing plan. How he navigated and eventually solved the ensuing political impasse echoes down to the present.

I’m joined today by Sumner’s biographer, Josiah Daniels. Now a full time legal historian, Daniels was a partner in the international law firm, Vincent and Elkins. He received his JD in law and MA in history from UT Austin. Josiah, welcome to 15 minute history. Thank you. Happy to be here. I think it would do our readers a service to understand the court packing crisis.

So we’re in 1937. Franklin Roosevelt is frustrated with the progress of the New Deal. He’s frustrated with, um, the judiciary and how they’re ruling on the New Deal. And they come up with this court packing proposal. Can you walk us through that a little bit? Happy

[00:01:59] Josiah Daniel: to. Franklin Roosevelt was elected with a landslide majority in 1932, and he spent his first term rolling out what everybody calls the New Deal.

At first it was, uh, emergency measures to get people back to work a little bit, feed the hungry, try to provide some credit to businesses and get things going. And then in the second half of his first term, he and Congress began to enact some of the more structural reforms, like the creation of regulatory agencies and so forth.

So Businessmen, individuals didn’t all like it. Some of them went to court, a lot of them went to court, and they argued that his measures were unconstitutional. They found a receptive ear in the Supreme Court, and during 1935 and 36, the Supreme Court overturned about 15 of his initiatives under the New Deal.

So, some of them were 5 4. And the The swing justice, the fifth justice, was a guy named Owen Roberts. He tended to go back and forth between the more conservative justices, who were known as the Four Horsemen, and the more progressive justices, who were voting to sustain FDR’s program. So there was a lot of interest in the 5 4 balance

[00:03:19] Ben Wright: of the court.

Just out of interest, before we go on there, how many of the justices on the Supreme Court, because there’s nine, right? At this point. How many had Franklin Roosevelt appointed himself. He

[00:03:32] Josiah Daniel: had

[00:03:32] Ben Wright: appointed

[00:03:32] Josiah Daniel: zero, and they were all fairly old guys. One columnist lampooned them as the nine old men. They were all age approximately 70 at a time when 60 was the average age of an American male.

[00:03:47] Ben Wright: So this is a 1920s court. This is, you’ve had 12 years of Republican presidential, um, administrations before Roosevelt and this, this is a Republican court. Roosevelt’s a Democrat, first Democrat since Wilson.

[00:03:59] Josiah Daniel: That’s right. Uh, Roosevelt was very unhappy with these invalidations of New Deal measures. and he came up with a proposal that was dubbed the court packing plan.

Now you got to keep in mind two constitutional principles here. One is under article three of the constitution the um, the justices serve lifetime terms with salary protection and the judges can get to serve during good behavior, which has always been interpreted to mean for your life. So, Roosevelt came up with the idea, what if we appoint one additional judge for each sitting judge who’s reached age 70 and has declined to retire?

It implied, based on the ages of the justices, adding another six justices to the court to make a court of 15 altogether. Right. Which was a pretty, um, radical proposal, and it provoked an enormous public discussion, almost a firestorm, that lasted for the next six months.

[00:05:10] Ben Wright: Roosevelt’s not a young man himself at this point.

Was there any irony? Um, understood that in the press. He was certainly in his late 60s by then. I’m just, I’m curious because modern politics is so preoccupied with this, uh, concern of age, whether it’s age of congressmen and senators or presidential candidate. It’s intriguing to hear that age has been a, has been a political concern, um, going back as well.

Yes. So, um, into this maelstrom steps Hatton Sumners, Chairman of the House Judiciary Committee. Uh, what role does he

[00:05:46] Josiah Daniel: play? Well, I argue he plays a really underappreciated role today, and in fact, a key or instrumental role in resolving the crisis. The court packing plan was announced on February the 5th, 1937, and Roosevelt wanted Sumners to introduce.

the bill. Sumner’s politely declined, and with the help of John Nance Garner, sitting vice president, persuaded Roosevelt to have the bill introduced in the Senate instead. That gave Sumner’s freedom of action over the next coming months. He actually had sort of foreseen this coming, so he had filed two bills, One month earlier, at the very beginning of the Congress, that, um, I argue bookend the resolution of the crisis.

The first one was a bill to make it possible for justices to retire from the Supreme Court at full salary for the rest of their lives, continue to have the status of a federal judge and be able to sit in all of the lower courts, but not the Supreme Court, for their lifetime if they wished. That had never been available to them before.

The justices had two options to leave the bench up till now. The first was to resign, in which case they went into the federal pension system. And Congress, early in the Depression, whacked federal pensions by 50 percent. So that was, that was actually persuading some of the justices to stay put on the bench because they couldn’t take the financial hit.

The second bill was a bill to to provide standing to the Attorney General. Let me just explain quickly, but I mentioned that a lot of businessmen objected to New Deal programs, filed lawsuits to have them declared unconstitutional, and were having some success. In addition to just filing the suits, they were obtaining from the federal district courts injunctions against the operation of those statutes.

So, by early 1937, there were more than 2, 000 thousand injunctions stopping the implementation of various New Deal programs through all of these lawsuits. The Attorney General of the United States was not a party to any of those lawsuits. It was not necessary to bring the Attorney General in, and the Attorney General had no statutory right, no statutory what’s called standing, to get involved.

Sumner’s second bill provided standing to the Attorney General to become involved within the first 30 days after any lawsuit is filed in any federal court that raises an issue of constitutionality. The court is supposed to stop the proceeding for 30 days and bring the Attorney General into the suit so that the government can be represented and be heard at the lowest level and from the beginning.

shaping the record, making the arguments, collectively, I’d say, those two, those two bills bookended the crisis and resolved it in favor of the president. The president never again suffered an invalidation of any New Deal program on account of unconstitutionality after that. To back

[00:09:00] Ben Wright: up a little. Do you think the court packing plan, would it have worked?

Would it have been a better solution than some of the solution? It seems that 15 members of the Supreme Court would be a radically different type of body just from a human interaction perspective, almost as a miniature Senate. At that point, it would have

[00:09:25] Josiah Daniel: been better. A big change. Now, the number of justices on the Supreme Court has fluctuated over U.

S. history. It started out at three, and it went to five, and back to four, and it went to ten during the Civil War, and then it went back to nine in 1868. And it’s been at nine ever since then. It’s up to Congress to determine the number of seats on the Supreme Court. It does so by statute. Many people think it’s in the Constitution.

It is not. It’s a matter of statutory law. A court of 15 would be, honestly, a lot more unwieldy. It would have to work in subcommittees or panels. Nine is, for an appellate court, nine is

[00:10:11] Ben Wright: a pretty ideal number. But it does seem that that number nine is sort of enshrined in American political culture now.

The other thing that seems to have been enshrined through Sumner’s legislative work is the role of the Attorney General.

[00:10:25] Josiah Daniel: From that time forward, that’s exactly correct. And that second bill, the second statute by Sumner’s, the Standing Act for the Attorney General, became effective immediately and within Weeks, the Attorney General was getting notices around, from around the country, courts, where new constitutional issues were raised, intervened, and represented the government’s position from the get go.

And it’s made a difference.

[00:10:55] Ben Wright: I alluded earlier to the sort of partisan aspects of this, um, Republican appointed judiciary with a new Democratic president, but of course Sumners is a Democrat too. Uh, John Natsukana is a Democrat. Sam Rabin is a Democrat. So why is Sumners opposed, uh, to Roosevelt in this, even though he is also a Democrat?

[00:11:15] Josiah Daniel: You know, that’s a complex question. He would tell you, as he told reporters back in, in the 30s, that he doubted if there was any other congressman who’d been as consistently in support of the president’s measures as he had been. It’s a little bit of an overstatement, but, uh, of the major New Deal programs, he only voted against one, and he changed his vote to in favor of it at the last minute.

But Sumners is, he’s a very complicated guy. It’s been, it’s been difficult to come to understand him. Of course, he’s coming out of the South. He’s from Dallas, deep South state, solid South. Jim Crow is the environment in which he’s grown up. He’s, um, actually remembered If at all today, mostly for some rather vile things he said on the floor of the House of Representatives about African Americans.

Every time an anti lynching bill is introduced, he felt like for some reason he had to go to the floor of the House and denounce it in really ugly terms. He’s always feeling a tension between the growth of the federal government and leaving the states to do the things that he thinks they’re supposed to do under the Constitution.

[00:12:40] Ben Wright: Uh, your book on Sumner’s, when it comes out, will be a biography, uh, but it’ll also be a work of legal history. Something I’ve heard you talk about is, uh, The distinction between law and lawyering and therefore the history of law and lawyering. Uh, would you consider yourself a history of lawyering more than a history of law?

[00:13:00] Josiah Daniel: Well, um, so, I practiced law for 39 years. Um, I’m now in my second career. I call myself an historian because that’s what I’m doing full time. A lot of archival research, writing and publishing.

[00:13:13] Ben Wright: Um,

[00:13:16] Josiah Daniel: my My special perspective that I bring to all this, I think, is having been a practicing lawyer and seeing how the law system, the legal system works in court cases, and at the bargaining table, and in the crafting and drafting of transactions.

I think, The lawyer is underappreciated in legal history because it’s, it’s usually the lawyer who’s making these things happen on behalf of a principal, who we call the client. So I try to figure out what’s really going on, who’s really got the power here, how is that party using the It’s or his or her lawyer to try to make these things happen.

It makes a huge difference. And my quick example is, uh, about 12 years ago, I published an article on the three weeks of litigation between Lyndon Johnson and Koch Stevenson in the summer of 1948. That’s the primary election for U. S. Senate in Texas that LBJ famously won by 87 votes out of a million cast.

And the last 200 votes came in one week late from Jim Wells County down in South Texas. And there were 200 for LBJ and one for Koch Stevenson, and that gave him the 87 margin vote a victory. It’s pretty obviously it was a, an act of voting fraud. It’s very clearly that we can say as historians today. But LBJ won the litigation and he did so because he hired the best lawyers.

So what I tried to do was show how the lawyers fought this battle over three weeks in state and federal courts. It ended kind of like Bush versus Gore with a Supreme Court justices stay that still Stopped the recounting of the ballots in Jim Wells County just when the ballot box was on a table in a courtroom and they’d called for a locksmith to undo the lock.

The call came in from Washington that Justice Hugo Black had stayed the proceedings. Do nothing more that is a classic example of the importance of lawyering.

[00:15:32] Ben Wright: This is interesting to me because Obviously today there’s a lot of conversation around election integrity that we’ve got presidents in the courts We’ve got president’s children in the courts.

There’s a lot of lawyering going on around the legislative process And I think people are tempted to think of this as something new, that we’ve hit a new low or, you know, we’re entering terra incognita as a democracy, but your research seems to suggest that this kind of stuff has popped up and down in American history.

[00:16:04] Josiah Daniel: I would say continuously, yes. Look for the lawyer and try to figure out what he or she was doing and on behalf of whom. That’s a good way to figure out what was really happening and who really held power.

[00:16:20] Ben Wright: Well, thank you so much for joining us today, Josiah. This was great. This has been a great pleasure for me.

Thank you, Ben. Brilliant. 15 Minute History is produced at the University of Texas at Austin in partnership with Not Even Past and Hemispheres in the College of Liberal Arts. It is recorded at the Leitz Development Studio. Subscribe wherever you get your podcasts, follow us on social media, and visit our website for more information and resources.

See y’all next week.