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The History of “Court-Packing” | Teaching American History

Roosevelt’s “Court-Packing” Plan

For many college students, the “Fireside Chat on the Reorganization of the Judiciary” (extra memorably recalled as Franklin D. Roosevelt’s “court-packing plan”) brings up, for the primary time of their examine of US History, questions concerning the precise quantity of Supreme Court justices. Most haven’t but taken a Government course, and have by no means observed that the Constitution doesn’t specify what number of justices the Court ought to have. The excessive drama and political intrigue behind the reorganization plan seize college students’ imaginations, fairly understandably, however may result in a misreading of context. That is to say, college students typically mistakenly imagine that FDR’s March 1937 Fireside Chat is the primary introduction of politics into SCOTUS numbers: as a result of that is the primary time they’re listening to about it, they assume that is the primary time that it occurred. And but the story of altering SCOTUS numbers (to say nothing of modifications on the federal bench at giant) is full of fascinating political techniques. 

“Historical Figures”

To introduce my college students to the fuller context of political maneuverings behind SCOTUS numbers, I wish to pair FDR’s Fireside Chat with a political cartoon from 1937, “Historical Figures” by Herblock (the pen title of artist Herbert Block). Herblock sketches out the altering quantity of justices on the Supreme Court from the time of its creation till FDR’s proposed reorganization in 1937. He provides a sing-song rhyme to convey a memorizable historical past lesson. While “Historical Figures” offers us the essential narration, some exploration and rationalization of context permits us to see the politics behind the additions (and occasional subtractions) of justices on the Court.

The history of court-packing
Historical Figures, drawing by Herblock [Herbert Block], February 19, 1937. Prints and Photographs Division, Library of Congress

Congress decided at first to fix/the number of justices at six, Herblock begins, referring to the Judiciary Act of 1789. 

“1801: Congress planned on a change to five, but the six remained very much alive.”

To the diploma that college students know something concerning the political intrigue of John Adams’ 1801 lame duck interval, they know concerning the “Midnight Judges Act” resulting in Marbury v. Madison, however not about that act’s intent to cut back the quantity of SCOTUS justices upon the following emptiness. This stipulation was repealed by legislative motion within the first full yr of Jefferson’s presidency. 

1807: Six high judges, supreme as heaven — and Jefferson added number seven.”

1837: Seven High Judges, all in a line — two more added, and that made nine.”

“Court-Packing:” A History

Jefferson’s Efforts to Influence the Supreme Court

Initially college students have a tendency to search out these additions to the SCOTUS bench — as much as seven in 1807, and to 9 thirty years later — uncontroversial, as a result of these legislative acts matched the quantity of SCOTUS justices to an expanded quantity of federal circuit courts. After all, this can be a time when SCOTUS justices “rode the circuit,” as a result of the unique Judiciary Act of 1787 additionally stipulated that they’d act as regional judges when away from the very best courtroom within the land. Nonetheless, Jefferson’s administration was not devoid of political rivalry round judges. President Jefferson lobbied for the impeachment of SCOTUS Justice Samuel Chase (efficiently, although this impeachment didn’t finish in his elimination from the bench). 

Jackson and the 1837 Judiciary Act

In the case of Andrew Jackson’s appointments, the timing of the 1837 Judiciary Act — on Jackson’s final day in workplace — raises college students’ antennae. Jackson was allowed to make the nominations below the act, because it took impact instantly. Strikingly, all 5 of Jackson’s second-term SCOTUS appointees got here from slaveholding states, at a time shortly earlier than anti-slavery politicians would start to complain concerning the political “slave power” dominating federal affairs.  

The Civil War and the Supreme Court

1863: Nine high judges were sitting when/Lincoln made them an even ten.”

1866: Ten high judges, very sedate; when Congress got through there were only eight.”

1869: Eight high judges who wouldn’t resign; Grant brought the figure back to nine.”

The twists and turns of Civil War & Reconstruction SCOTUS reorganizations mirrored the politics of slavery, of battle, and of civil rights. The 1863 reorganization added a tenth circuit and SCOTUS decide whereas additionally lowering the quantity of circuits representing slaveholding states. This effort was clearly geared in the direction of reforming an establishment that had come to be seen as (within the phrases of the January 3, 1862 version of Minnesota’s Weekly Pioneer & Democrat) “the last stronghold of Southern Power”. Lincoln needed to counter judicial obstruction of the Union effort. Three years later, within the Judicial Circuits Act of 1866, Congress handed a deliberate discount to seven justices that denied Andrew Johnson the chance to nominate anybody to the excessive courtroom (within the midst of tense congressional/presidential arguments over Reconstruction that might result in Johnson’s impeachment two years later). 

As Herblock’s poem signifies, SCOTUS by no means fairly diminished right down to seven, and the Judiciary Act of 1869 returned the quantity of seats to 9. The single addition was essential, as SCOTUS had beforehand declared key Reconstruction financial plans (about issuing paper foreign money) unconstitutional; the reconstituted nine-member courtroom reheard the important thing case and reversed the choice by a single vote. 

Roosevelt’s Plan

“1937: Would a justice feel like a packed sardine/if the number was raised to — say — fifteen?”

Herblock’s last rhyming query brings readers to his current second, and reminds us (alongside along with his amusing visible) of simply how jarring FDR’s plan was. But, nevertheless jarring it might have been, FDR’s proposed 1937 judicial reorganization didn’t inject politics into SCOTUS numbers for the primary time. FDR’s by-then established follow of speaking to the general public about coverage via radio addresses could have made it appear totally novel, however zooming out to survey the broader timeline reveals us that nearly each proposed reorganization of the federal judiciary has entailed a certain quantity of political strategizing. Showing college students that political jockeying over the Supreme Court is just not a “modern” growth doesn’t require us to condone or condemn any particular reorganization. Instead, it reminds college students that it isn’t bizarre that events and politicians (in FDR’s time or ours) appear to deal with the Supreme Court as a political soccer. In truth, it is perhaps a extra important aberration in the event that they didn’t. 

Our latest CDC quantity, The Judiciary, might be out there in our bookstore in May. This assortment of paperwork presents an array of views on the function that the courts ought to play in American life and the way they need to interpret the Constitution and our legal guidelines.

Additional Sources

Federal Judicial Center:

Irons, Peter. The History of the Supreme Court: Course Guidebook. Chantilly, VA: The Teaching Company, 2003.

Presidential Commission on the Supreme Court of the United States, “Draft Final Report.” December 2021


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