President Franklin Roosevelt’s 1937 attempt to expand the federal judiciary, known as his “Court-packing plan” by its many critics, met with ferocious opposition. Congressmen who had warily supported the New Deal now backed away, unnerved by the president’s willingness to subvert the existing power structure. In the popular press, columns such as Dorothy Thompson’s from the Washington Star reflected both popular disgust at Roosevelt’s plan to increase the number of Supreme Court justices and FDR’s continued popularity. Thompson’s comparison of Roosevelt to Hitler seems ridiculous now, but others (like Father Charles Coughlin) made such comparisons regularly in 1937. Ironically, over the next four years FDR was able to fill seven vacancies on the Court, largely ending its opposition to the New Deal. By then, however, thanks in large part to public opposition to the Court-packing plan, he had lost the predictable majorities that had easily carried his bills through Congress during his first term.
If the American people accept this last audacity of the President without letting out a yell to high heaven, they have ceased to be jealous of their liberties and are ripe for ruin.
This is the beginning of pure personal government. Do you want it? Do you like it? Look around about the world—there are plenty of examples—and make up your mind.
The Executive is already powerful by reason of his overwhelming victory in November, and will be strengthened even more if the reorganization plan for the administration, presented some weeks ago, is adopted. We have, to all intents and purposes, a one party Congress, dominated by the President. Although nearly 40 percent of the voters repudiated the New Deal at the polls, they have less than 20 percent representation in both houses of Congress. And now the Supreme Court is to have a majority determined by the President and by a Senate which he dominates.
When that happens we will have a one-man Government. It will all be constitutional. So, he claims, is Herr Hitler.
Leave the personality and the intentions of the President out of the picture. They are not the crux of this issue. He may be as wise as Solon, lofty as Plato and pure as Parsifal. He may have the liberties of the American people deeply at heart. But he will have a successor who may be none of these things. There have been benevolent dictatorships and benevolent tyrannies. They have even, at times in history, worked for the popular welfare. But that is not the welfare, which up to now, the American people have chosen.
And let us not be confused by the words “liberal” and “conservative” or misled into thinking that the expressed will of the majority is the essence of democracy. By that definition Hitler, Stalin and Mussolini are all great democratic leaders. The essence of democracy is the protection of minorities. Nor has a majority of this generation the right to mortgage a majority of the next. In the Constitution of the United States is incorporated the rights of the people, rights enjoyed by every American citizen in perpetuity, which cannot be voted away by any majority, ever. Majorities are temporary things. The Supreme Court is there to protect the fundamental law even against the momentary “will of the people.” That is its function. And it is precisely because nine men can walk out and say: “You can’t do that!” that our liberties are protected against the mob urge that occasionally Court has been traditionally divorced from momentary majorities.
They say that England does not understand our veneration for the Constitution and the Supreme Court. But let us not be deluded. England is a small, homogeneous country, with a most extraordinarily sensibility to the infringement of individual liberties, a sensibility which this country by no means feels so keenly. There are no considerable racial minorities in England. Ours are gigantic. There are no lynchings in England, nor is there the police or the gang terror which infests some of our cities. Admit that a series of constitutional interpretations have perhaps changed the spirit which the founding fathers sought to preserve. The Constitution can be changed. There are ways provided for doing so. To change it will require much deliberation, debate, time. And what is wrong with deliberation and debate and time? What is the hurry? Under what threat are we living at this instant?
This is no proposal to change the Constitution. This is no proposal to limit the powers of the Supreme Court. This is a proposal to capture the Supreme Court. There is a constitutional issue in this country, but it has nothing to do with the age of judges.
If all the justices of the Supreme Court had voted during the last four years with Justice [Louis] Brandeis they could all have been his age, which is 80, and the question of retiring them would not have occurred. Or do you think it would?
If, of the six men over 70, four had been “liberals” and two “conservatives,” instead of the other way around, do you think that this program would have been proposed?
The theory that if 9 men take 90 days to make up their individual minds, 15 men will take fewer days to make up theirs is cabalistic arithmetic. Nine men of 60 can work faster than 9 men of 70, but 15 men, of whom 6 are over 70, can expedite business in the same time as 9, all of whom are under 70. Apparently that is the logic.
Don’t talk of liberalism! The liberal does not believe that the end justifies the means. Long experience has taught him that the means usually determine the end. No human being can believe in the sincerity of this proposal. It is clever, in a world sick of cleverness and longing for plain talk and simple honesty. Must we begin to examine every message from the President to see whether there is a trick in it somewhere'?
Are the opposition in Washington phonographs or are they men? If they are men we shall see another little “willful group.” They are a handful, but they can do one thing: They can see that this measure is not rushed through without debate, they can see to it that the country has time to think about this, to talk about it, to debate it on every forum platform, to act upon it, individually and in groups, regardless of party.
Source: Dorothy Thompson, Washington Star, 10 February 1937.
See Also:"Younger and More Vigorous Blood": FDR on the Judiciary
FDR versus Nine Old Men: Schechter v. United States