from its worst depression seemed to depend.

The rude awakening from this illusion came early in 1935, when the Supreme Court invalidated the National Recovery Administration’s petroleum code as an unconstitutional venture into executive law-making. Soon there followed Chief Justice Charles Evans Hughes’s opinion, written on behalf of a unanimous court, which wiped out the whole NRA and its progeny of Blue Eagles. [In the case before the court (commonly called the “sick chicken” case), four brothers named Schechter had been found guilty of marketing diseased fowl in violation of the NRA’s poultry code. Their lawyers contended only that Congress had no power to regulate local—as distinguished from interstate—business, but the court went beyond this and invalidated the whole industrial recovery act. As Fred Rodell wrote in Nine Men: “A few sick chickens had murdered the mighty Blue Eagle.”] The court found the NRA wanting on two counts: first, Congress had delegated extensive law-making powers to trade organizations acting with the approval of the President; second, it had swept under federal control wholly local activities—in this instance the marketing of poultry—only remotely related to the interstate commerce which Congress is authorized to regulate.

On the same “Black Monday” the court unanimously struck down the Frazier-Lemke Act for relief of farm debtors, with Justice Louis D. Brandeis writing the opinion, and reversed the President’s dismissal of William E. Humphrey from the quasi-judicial Federal Trade Commission. The Humphrey decision is said to have nettled the President more than any other, but when he held a lengthy press conference and denounced the Supreme Court for taking the country back to a “horse-and-buggy” concept of interstate commerce it was the NRA decision that he had in mind.

Actually the court’s coup de græce to the NRA was a blessing in disguise to the Roosevelt administration, for its unwieldy codes were already cracking up. The court saved the President from what would have been an embarrassing retreat. But F. D. R. saw in the sweeping nature of the “sick chicken” decision a threat to other parts of his program, and in this he was right.

In most of the early New Deal cases the court had been unanimous, but as it moved on to more controversial issues its long-standing internal schism was much in evidence. On the conservative side, Justices Willis Van Devanter, Pierce Butler, George Sutherland, and James C. McReynolds nearly always stood together. To them any innovation was likely to appear as an unconstitutional seizure of power. The liberal wing, consisting of Justices Brandeis, Harlan F. Stone, and Benjamin N. Cardozo, was more inclined to give Congress a free rein unless it had flagrantly overreached the limits of its power. Chief Justice Hughes occupied a middle ground, and Justice Owen J. Roberts often stood with him. For the New Deal, the result was fluctuation between reverses and narrow victories.

The court’s action in the “gold clause” case

in the spring of 1935 both relieved and angered the President. In this decision, four associate justices stood with Hughes in condemning Congress’ repudiation of the government’s promise to redeem its bonds and currency in gold. But, having thus bowed to principle, the court saved the economy from catastrophe by ruling that bondholders, who had suffered no loss of purchasing power when Congress increased the value of gold in terms of paper dollars, could not hold the government to its promise to pay in gold or its equivalent. From this latter part of the decision the four conservatives dissented. For the moment, the ingenious solution Hughes had invented to save the government from a crushing addition to its debt averted an open clash between the President and the court, for F. D. R. had prepared a radio address announcing his refusal to enforce the decision—an address to be delivered if the court should allow the bondholders to take their pound of flesh.

Another New Deal innovation, the Agricultural Adjustment Administration, might have been saved had Congress, in building the AAA, used its power to regulate interstate commerce. Instead, it had used its taxing power. Hughes, Roberts, and the four conservatives concluded that the benefit payments to farmers, financed by a processing tax, had the effect of coercing them into compliance with a regulatory scheme that had no relation to interstate commerce. Stone and his liberal brethren dissented with unusual vehemence, and subsequent judicial thinking tends to support their conclusions if not the bite in Stone’s words.

Both court factions broke away from Hughes’s middle ground in the case involving the Guffey Act, designed to rescue the ailing coal industry. Hughes thought the price-fixing section of this statute was valid and that only its labor provisions were constitutionally defective. But a majority of five swept the whole act into the discard, with Brandeis, Stone, and Cardozo dissenting. The Municipal Bankruptcy Act met a similar fate.

Finally, the same majority of five released a legal block-buster by striking down New York State’s minimum wage law for women. Coming on the heels of many decisions rejecting the extension of federal power over the economy, this restriction of state power seemed to indicate that no government could legally cope with the grave problems of the depression. The court’s extreme stand-pattism raised an outcry throughout the land. Dissenting opinions by Hughes and Stone, in which Brandeis and Cardozo joined, pointedly disclosed the alarm felt within the court itself over this reactionary trend.

The white-bearded Chief Justice, whose liberal instincts were neatly blended with a high regard for traditional constitutionalism, was almost as much concerned over this turn of events as was the President. Both brooded on how to save the country from the consequences of static legalism. But, while Hughes thought in terms of correcting loosely drawn legislation and interpreting the basic law more liberally, Roosevelt turned toward more drastic measures.

Soon after the NRA decisions

in 1935, F. D. R. had put his attorney general, Homer Cummings, to work on “the court problem.” In the following months the Department of Justice and the President quietly studied the respective merits of a constitutional amendment broadening federal powers, a statute limiting the court’s jurisdiction, a provision requiring a two-thirds vote in the court to nullify an act of Congress, and an enlargement of the court’s membership. No conclusions were drawn, however, and the issue was astutely avoided in the 1936 presidential campaign, except for a pledge in the Democratic platform that the economic and social problems of the day would be met in a constitutional manner. Republican charges that the President, if re-elected, would resort to the “tyranny” of court-packing met with impassioned Democratic denials.

Once Roosevelt’s towering victory over Governor Alfred M. Landon was achieved, however, he moved against the court with supreme confidence. Did he not have a new mandate from the people to carry out his New Deal? Was not the court standing in his way? To Roosevelt’s way of thinking, his chief problem was to find the most effective way of clearing this obstruction from his path.

It was Cummings who finally came up with the idea of naming new judges to replace the aged men on the bench. The fact that Justice McReynolds, when he had been attorney general in 1913, had advanced such a plan for driving overage judges of the lower courts into retirement made this approach irresistible. To the President’s delight, Cummings shrewdly camouflaged the scheme in the trimmings of judicial reform. With the aid of a few trusted lieutenants, he drafted and redrafted a bill and a presidential message to Congress.

There was no discussion of the bill with the Cabinet, congressional leaders, or members of the court. F. D. R. gave his annual dinner for the judiciary on the evening of February 3, 1937, without breathing a word of his secret to the judges. On the morning of February 5 he disclosed the contents of his message to an incredulous group of Cabinet and congressional leaders a few minutes before he jubilantly explained it to the press. Both his aloofness in working out the plan and his manner of presenting it suggested that he regarded it as almost a fait accompli .

The President represented his bill as a reform aimed at correcting injustice and relieving the court of congestion. His inference was that aged justices on the Supreme Court bench were keeping their calendar clear by rejecting an excessive number of petitions for review—a charge that almost every lawyer knew to be false. Though he called for a “persistent infusion of new blood” into the judiciary, there was only a vague hint of the bill’s real purpose in his suggestion that it would obviate the need for more fundamental changes in the powers of the courts or in the Constitution.

The heart of

the bill was the provision giving the President authority to name an additional federal judge for every incumbent who had been on the bench ten years and had not resigned within six months after reaching the age of seventy. As six members of the Supreme Court had passed that age limit, F. D. R. could immediately have appointed six new justices. If Chief Justice Hughes and his five aged associates had chosen to remain, the membership of the court would have been enlarged from nine to fifteen.

Legislators gasped over the boldness of the plan, yet many of them gave it immediate support. Others who dared to speak out against it assumed their opposition would be futile; Senator Carter Glass summed up his despair by exclaiming: ”Why, if the President asked Congress to commit suicide tomorrow, they’d do it.”

The impact on the justices varied. Roberts, the youngest among them and therefore not a direct target of the President’s campaign, decided to resign if the measure were passed. Hughes, then 74, told his intimates, “If they want me to preside over a convention, I can do it.” Brandeis, the eldest of the so-called Nine Old Men and one of the greatest liberals who ever sat on the Supreme Court bench, was cut to the quick by the President’s indiscriminate assault upon age. Without exception, the justices were hostile to the scheme and resented the President’s false inference that they were not able to keep up with their work.

The first jolt that the bill sustained was a wave of public reaction against the deceptive trappings of reform in which F. D. R. and Cummings had tried to camouflage their assault upon the court. Many, even among those who thought the conduct of the court had forced the President’s hand, were critical of this indirection. It placed the Administration forces on the defensive from the very beginning.

A second severe jolt came when Senator Burton K. Wheeler read a letter from Chief Justice Hughes to the Senate Judiciary Committee, which was conducting hearings on the bill. Leaders of the fight in the Senate had asked the Chief Justice to appear in person, and he had agreed to do so if Justice Brandeis would accompany him. When he found that Brandeis believed strongly that no justice should testify in person, he contented himself with sending a letter setting forth the facts about the work of the court.

With cool logic, Hughes showed that the Supreme Court was fully abreast of its work, that it was very liberal in granting petitions for review, and that an increase in the size of the court would impair rather than enhance its efficiency. “There would be more judges to hear,” he wrote, “more judges to confer, more judges to discuss, more judges to be convinced and to decide.” Without touching on the major question of policy, Hughes left the President’s arguments a shambles.

The Senate hearings produced a chorus

of opposition to the bill from distinguished leaders in many walks of life. Such an outpouring of public opinion stiffened the spines of many legislators who had been worried but silent. The Republicans wisely kept in the background and let opponents of the bill in the President’s own party lead the fight. The White House was increasingly alarmed by the disaffection of loyal New Dealers, but the President continued to scoff at any suggestion of compromise. To anxious members of his official family his stock answer was: “The people are with me; I know it.”

Meanwhile a ferment had been working within the court. Some two months before the President had disclosed his plan, the black-robed justices had brooded afresh over the constitutionality of state minimum-wage laws and decided that their previous conclusion in the New York case had been wrong. In a new case the state of Washington, in asking the court to uphold a state minimum-wage law very similar to the New York statute it had invalidated, had directly urged the court to overrule the key precedent on this point, Adkins v. Children’s Hospital , which the timorous New Yorkers had tried merely to circumvent. In December, 1936, the court voted four-to-four to uphold the Washington law and to reverse its own previous decision of only six months before in the New York case.

Four votes were enough to let the challenged statute stand because it had come to the Supreme Court with the sanction of the state of Washington’s highest tribunal behind it. Three affirmative votes came from Hughes, Brandeis, and Cardozo. The fourth was that of Justice Roberts, who had switched sides from his position in the New York case, in part at least, because the state of Washington had made a frontal assault on the old precedent, which he felt had been discredited. At the time no one on the court had the slightest inkling of the bill taking shape at the White House, but Hughes was so delighted with Roberts’ conversion that he almost hugged him.

Loath to have an issue of such importance disposed of by an even vote, however, Hughes decided to hold this Washington case until Justice Stone returned to the bench. Stone, who was ill, would certainly vote to uphold the state statute. When the Chief Justice revived the issue about February 1, 1937, Stone joined in a complete reversal of the old precedents, but before the opinion could be written and handed down the court found itself under threat of being packed.

Much has been written about this dramatic change of direction by the court, but actually the Washington case did not effect a clean break with the past. The court had upheld broad applications of state powers in both the Blaisdell case (involving the Minnesota Mortgage Moratorium Law) and the Nebbia case (involving the law under which New York was fixing the price of milk). Roberts followed the reasoning of

these decisions instead of clinging to the older precedent. His recognition of error indicated that the court did not regard itself as infallible and therefore redounded to its credit.

Support for Roosevelt’s judiciary bill further crumbled on April 12, when the court upheld the National Labor Relations Act in the fateful Jones and Laughlin Steel case. The opinion of Chief Justice Hughes was a sweeping confirmation of the power of Congress to regulate industrial relations having a direct impact on interstate commerce. The President claimed credit for the decision but was still not convinced that the court had gone far enough. He turned more heat on wavering legislators on behalf of his bill.

A few weeks later the Senate Judiciary Committee rejected the ill-fated legislation, just before the newly consolidated majority of the court gave its blessing to the Social Security Acts. These events spelled out the Administration’s defeat in no uncertain terms, but rear-guard fighting continued because of a strange set of circumstances.

In devising remedies for “the court problem” no one had had the wit or the grace to offer the aged justices a reasonable chance to retire. Even before 1937, both Van Devanter and Sutherland had been eager to lay down their tasks, but Supreme Court justices could cease active service only by resignation, and Congress was then free to reduce their compensation, as indeed it had done in the case of Justice Oliver Wendell Holmes. So the aged judges held on despite some infirmities.

After the court fight began, opponents of the President’s bill rushed through Congress a liberalized retirement measure in an effort to forestall a more drastic solution. Senator William E. Borah then persuaded his friend Justice Van Devanter to retire in order to make way for an appointment to the court by Roosevelt, who up to this time had had no opportunity to name a Supreme Court justice. Instead of easing the predicament, however, the sudden creation of a single vacancy threw the White House into near panic.

The President had previously offered the first seat at his disposal to Senator Joseph T. Robinson, a portly and conservative Democratic wheelhorse who, despite grave misgivings as to the judiciary bill’s consequences, was directing the fight for it as majority leader of the Senate. If the President should fail to honor his well-known promise to Robinson, he would be left without a friend in the Senate. And fulfillment of the promise would have turned the court fight into a grotesque hoax; for Robinson, at 65, was the antithesis of the “new blood” for which the Roosevelt men were so persistently clamoring. Caught on this horn of his dilemma, the President had to continue fighting for his bill as the only means of balancing the prospective Robinson appointment with those of younger and more liberal men.

Thus the fight went on, despite a searing report from the Senate Judiciary Committee. Though it was largely the

work of Democratic senators, that report characterized the court bill as “a measure which should be so emphatically rejected that its parallel will never again be presented to the free representatives of the free people of America.” At last the Administration sought to compromise, but the Senate had the bit in its teeth. No bill that retained any hint of court-packing was thereafter acceptable.

The unfortunate Joe Robinson was increasingly torn between his distrust of the bill and his ambition to become a justice of the Supreme Court. Outwardly, he fought with desperation against the doom that was closing in on the bill. Secretly, he kept its foes informed about the wavering of senators in his ranks. On July 14, 1937, his sorely troubled heart failed under the strain; his death knell also signaled the end for the judiciary bill. Shortly after Senator Robinson’s funeral the Senate formally buried the infamous measure in the usual way—by recommitting it to the Judiciary Committee.

Even this did not bring down the final curtain. F. D. R. struck back by naming as a successor to Justice Van Devanter one of his most ardent supporters in the court fight—a man who would be anathema to his foes in the Senate and who would nevertheless be in a position to command confirmation—Senator Hugo L. Black of Alabama. Regardless of what may be said of Justice Black’s subsequent career on the bench, the revenge motive appears to have been a major factor in Roosevelt’s nomination of him. If the President found the Senate’s discomfiture sweet, however, his satisfaction was short-lived. Shortly after his confirmation, disclosure that Black had once been a member of the Ku Klux Klan brought a fresh public clamor and intensified the bitterness of the whole affair.

Can this strange chapter in our history be regarded as an essential part of the process by which the Constitution has been modernized? Was President Roosevelt right in asserting, long after the fight was over, that he had lost a battle and won a war? Since 1937, undoubtedly, the Supreme Court has in many instances taken a broader view of the powers of Congress than it did before. But this came about without any change in the structure of the court, by an evolutionary process as different from court-packing as is an election from a coup d’état .

The chief reason why judicial decisions invalidating acts of Congress began to subside after 1937 was that Congress thereafter exercised greater care in casting its statutes. The reckless draftsmanship of the emergency period was eliminated. Sweeping delegations of power were avoided, and the new regulatory measures were based on the commerce clause instead of on the taxing power. Having fought a terrific battle to save the court from domination by the executive, Congress was especially eager to avoid the type of legislation that might precipitate another showdown.

Some individual judges made changes in their conclusions, as in the minimum-wage

cases. But these were less extensive than is generally supposed, and in no instance can they be directly attributed to the court-enlargement plan. Chief Justice Hughes denied emphatically that the court bill had any bearing whatever on any of his decisions, and in no case did he urge his brethren to shade their views to save the court. The “switch-in-time-saves-nine” myth was never anything more than a journalistic wisecrack.

More important than anything else in the evolution of constitutional doctrine since 1937 has been the changed personnel of the Supreme Court. Before F. D. R.’s death in 1945 he had named seven of the nine members of the court and had elevated Stone to the chief justiceship. Though the new justices became involved in turbulent controversies among themselves, they went much further than the Hughes court had done in amplifying the commerce clause and other federal powers. In general the country has accepted and welcomed these new interpretations. But what would have been its attitude and what would now be the standing of the court before the bar of public opinion if its membership had been expanded to fifteen in order to bring about decisions favored by the White House?

If Roosevelt had sponsored a reasonable retirement bill for members of the Supreme Court in 1937, the evolutionary process would have been hastened and this entire sorry chapter in our history could have been avoided. The chief difficulty seems to have been that after his triumphal re-election in 1936 the President was riding too high to deal with the court with the moderation and restraint that should guide the relations of one co-ordinate branch of government to another. He chose a method which might indeed have lifted restraints from Congress and the Administration—there was never much doubt about that—but it would also have imperiled our constitutional system, the central genius of which is its system of checks and balances.

The justices who piloted the court through this difficult period won a double victory. The net effect of the 1935-37 ferment over constitutional issues was to confirm their insistence that judges must take into account changed social and economic conditions as well as past legal precedents. After Justice Roberts abandoned his four conservative colleagues in the Washington minimum-wage case, they did not again control the court on any vital issue. The views that prevailed were those of Chief Justice Hughes, and of Justices Brandeis, Stone, Cardozo, and Roberts.

The principle for which they struggled was continued independent judgment on the part of the court. They insisted that it must be free to upset an NRA which slopped over the line of constitutional power as well as to uphold an NLRB which did not. With these men still on the bench, the NRA would have gone down in 1938 as readily as it did in 1935. They stood for a Constitution which marched forward—but not to tunes called by the White House or by a spate of

new justices suddenly appointed for that purpose.

Contrary to Roosevelt’s boast, it was these men who won both the “battle” and the “war” in 1937. Twenty years after the notorious court-enlargement bill went down to defeat, it has scarcely a defender. If it may be credited with having written a salutary lesson in our history, it is only because cooler heads than those of its authors found sage and legitimate means of destroying it. The bill remains one of the major errors of American statesmanship in the current century.