Monday, January 30, 2023

Cushman on Court-Packing in Context

Barry Cushman, Notre Dame Law School, has posted Court-Packing in Context which is forthcoming in the Journal of Supreme Court History:

Burton Wheeler, March 1937 (LC)
There is a curious lacuna in the literature on the Court-packing crisis of 1937. The proposal for reform of the federal judiciary that received the most attention and consideration in that year was of course President Franklin D. Roosevelt’s proposal to enlarge the membership of the Supreme Court from nine to fifteen justices. Yet both before and throughout the battle over the President’s “Court-packing plan,” members of Congress introduced a wide variety of alternative measures for addressing their dissatisfaction with recent decisions of the Supreme Court invalidating various state and federal laws designed to relieve economic distress and stimulate economic recovery. Some of these proposals would have taken statutory form, while many others would have amended the Constitution in various respects. In the end, none of these measures was reported out of Committee. Nevertheless, they were the subject of serious discussion in multiple contemporary venues.

Scholarly treatments of the Court-packing episode typically are focused on two related questions: first, what were the Court-packing plan’s prospects for ultimate congressional enactment, and second, to what extent, if any, did the pendency of the Court-packing plan affect the outcomes in the Court’s major constitutional decisions in the spring of 1937? Perhaps as a consequence of this focus, proposed alternatives to Court-packing tend to be treated as something of a sideshow. Discussion of such proposals typically concentrates on the strategic reasons for which Roosevelt rejected them in favor of his own Court-packing plan. Largely overlooked is the rich contemporary legal, newspaper, and periodical literature in which these alternative measures received sustained legal and policy consideration. Similarly, the Senate Judiciary Committee hearings on Roosevelt’s bill, at which such proposals also were the subjects of extensive deliberation, routinely receive rather limited exploration. In some cases, discussion is largely confined to the manner in which the bill’s opponents used the hearings to delay its ultimate consideration. Other treatments offer more fulsome accounts of the arguments made for and against the President’s bill, but pay little if any attention to the substantive arguments witnesses raised concerning alternative proposals.

At a time when proposals for Court reform have resurfaced in public conversation, it may prove illuminating to reconstruct the robust discussion of the topic that took place in the 1930s. That, in any event, is the aim of this article. First, I briefly canvass the arguments concerning Court enlargement offered at the Senate Judiciary Committee hearings on the President’s bill. I then survey the various alternatives to Court expansion introduced by members of Congress, and review the wide array of policy and constitutional arguments made with respect to these proposals. I next examine the debate over the Administration’s claim that a statutory solution to the “Court problem” was necessary because the process of amending the Constitution was too slow and difficult. In the Conclusion I offer some thoughts on the motivations of the Senators and Representatives who introduced such alternative proposals, and the reasons for their ultimate failure of enactment.
--Dan Ernst