Thursday, September 19, 2013

Cushman on "Court-Packing and Compromise"

Senate Judiciary Committee Considers the Court-Packing Bill (Credit: LC)
Barry Cushman, Notre Dame Law School, has posted Court-Packing and Compromise, which appears in Constitutional Commentary 26 (2013).  Here is the abstract:
President Franklin D. Roosevelt’s 1937 Court-packing bill would have permitted him to appoint six additional justices to the Supreme Court, thereby expanding its membership to fifteen immediately. Throughout the ultimately unsuccessful campaign to enact the measure, Roosevelt was presented with numerous opportunities to compromise for a measure authorizing the appointment of fewer additional justices. The President rejected each of these proposals, and his refusal to compromise often has been attributed to stubbornness, overconfidence, or hubris. Yet an examination of the papers of Attorney General Homer S. Cummings reveals why FDR and his advisors believed that he required no fewer than six additional appointments in order to secure a liberal working majority on the Court. Those sources also help to clarify why the substitute Court bill introduced by Senate Majority Leader Joseph Robinson in July of 1937 took the form that it did, and why Robinson’s untimely death that month not only made passage of the bill impossible, but also made it unnecessary. Though Roosevelt’s refusal to compromise can be seen as more rational than is commonly thought, in retrospect one can see that his Court-packing proposal was an entirely unnecessary misadventure through which the President ultimately lost far more than he gained.
I can't resist the temptation to chime in with something I've just read in the archives.  On November 4, 1936, Charles E. Wyzanski, Jr., wrote his mother from the Solicitor General's office: “I do not like the size of the Roosevelt vote.  With a man of the President’s temperament such an endorsement may prove an irresistible temptation."  DRE.