In the wake of the most conservative Supreme Court term in living memory, capped by the overturning of Roe v. Wade, the drumbeats for court-packing in leftist circles have increased again. The Left claims Republicans stole the seat that should have gone to now-Attorney General Merrick Garland and defied the sainted Justice Ruth Bader Ginsburg’s dying wish that President Joe Biden name her successor, so political payback is justified.
What liberals want — when they’re not demonstrating in front of justices’ homes or hounding them at dinner — is for Congress to rectify the court’s supposed illegitimacy by adding progressive jurists. But in doing so, they ignore the lesson of the last serious push for expanding the court for political purposes, instigated by their patron saint Franklin Delano Roosevelt. FDR’s court-packing scheme was not only a spectacular failure but quickly proved unnecessary.
After significant churn in the court’s personnel in the decade leading up to FDR’s 1932 election, the new president was stymied by the “Nine Old Men,” who rejected his ambitions. Yes, he had on his side the “Three Musketeers,” Justices Louis Brandeis, Harlan F. Stone, and Benjamin Cardozo — who favored the New Deal, held an expansive view of federal power, and practiced judicial restraint that deferred to the political branches — but three out of nine is only good for batting averages. Frustrated at not being able to get any new blood on the court in his first term, the landslide-reelected Roosevelt (523-8 in the Electoral College) sent to Congress on Feb. 5, 1937, a plan for a massive judiciary “reorganization” that would allow him to appoint an extra federal judge for each one who didn’t retire within six months of turning 70.
The Judicial Procedures Reform Bill capped the number of total new judges at 50 and the size of the Supreme Court at 15. Conveniently, six justices, including the conservative-stalwart “Four Horsemen” and the swing Chief Justice Charles Evans Hughes, were over 70. In a March 9 “fireside chat” radio address, Roosevelt assailed the court for “reading into the Constitution words and implications which are not there, and which were never intended to be there” and argued that Congress “must take action to save the Constitution from the court, and the court from itself.” But the president overplayed his hand, sending a disingenuous message to Congress about “insufficient personnel” that was countered by Hughes himself in an influential and statistics-laden letter to powerful New Deal-supporting Sen. Burton Wheeler (D-MT) that was co-signed by Brandeis.
Roosevelt’s plan was met with fierce opposition, splitting the Democratic supermajority in Congress and drawing a public rebuke from FDR’s Vice President John Nance Garner. Oswald Garrison Villard, the publisher of the left-wing Nation, testified that the bill “opens the way for dictatorship.”
The Senate Judiciary Committee negatively reported the bill. A month later, the full Senate recommitted it to the committee 20-70, where it was stripped of its court-packing elements, becoming a technical reform that Roosevelt signed in August of that year. But the political damage had been done: Republicans would pick up eight Senate seats in the 1938 midterm elections and 81 seats in the House (though such had been the Democrats’ advantage that this shellacking didn’t change control of either chamber).
Two important developments took place between the announcement of FDR’s plan and the Senate’s ultimate action. First, the court started upholding legislation of the sort it had previously invalidated, with Chief Justice Hughes and Justice Owen Roberts shifting their allegiance to the Three Musketeers in West Coast Hotel v. Parrish (minimum wage), then NLRB v. Jones & Laughlin Steel (labor regulation), and, finally, Steward Machine Co. v. Davis (unemployment insurance) and Helvering v. Davis (Social Security). The duo denied to their graves that their “switch in time” was politically motivated — FDR’s court-packing scheme would have failed regardless — but even so, the pragmatic Hughes surely acted on a recognition that the handwriting was on the wall.
But second, and perhaps even more importantly, Justice Willis Van Devanter, the oldest and longest-serving of the Four Horsemen, announced that he would retire on June 1, 1937. Finally, four-and-a-half years into his consequential presidency, FDR would have a Supreme Court vacancy.
As it turns out, that was the first of nine, a number surpassed only by George Washington’s table-setting. And they came quickly: By mid-1941, just four years after court-packing failed, only two justices remained whom FDR hadn’t appointed — and one of those, Stone, Roosevelt had elevated to chief justice. In a very real sense, then, FDR packed the court the old-fashioned way: by maintaining control of the White House and Senate and waiting for natural attrition.
There’s a lesson here for today’s Democrats. Already facing political headwinds ahead of this fall’s midterm elections, it’s all well and good to run against a court whose public confidence has fallen, but expanding the bench goes too far. Perhaps that’s why Biden hasn’t gone there yet, instead calling for filibuster carve-outs to pass abortion and voting rights legislation.
If progressives’ legislative agenda and jurisprudential vision really are more popular than those of their political opponents — if they have the courage of their convictions — they should bide their time and seize their future opportunities instead of provoking a backlash now.
Ilya Shapiro is the director of constitutional studies at the Manhattan Institute and author of Supreme Disorder: Judicial Nominations and the Politics of America’s Highest Court (now out in paperback), from which part of this essay is adapted. He’s also the author of Shapiro’s Gavel Substack.
