One would expect the defeat of the Judicial Procedures Reform Bill of 1937, usually referred to as FDR’s Court Packing Plan, to be a textbook example of the Pivotal Politics theorem. Wherein the median vote is the deciding vote in a left-right spectrum, which in the ’30s Senate, that means either the 51st or 67th vote is the affirmative (depending on if the legislation was filibustered or not). So, one would think that the President’s proposal had reached too far to the left and that a right-coalition of moderate and conservative Democrats, backed by Republicans, defeated the legislation. Unfortunately, that is not the case. In fact, it is an example when loyalty to the President or Party (the Democratic Party in this case) overruled traditional ideological politics.
To further complicate ideological matters, 1937 was the zenith of the New Deal Coalition, meaning the Democratic Party was home to both ardently progressive social democrats and full-throated Dixiecrat segregationists. Not to mention, the Senate had one of its largest third-party delegations in the body’s history (four senators from three different third parties). And this Congress, the 75th, was the last Congress before the initiation of the Conservative Coalition of Dixiecrats and Republicans. Despite the wide ideological diversity of the Democratic Caucus, there were so many progressive Democrats that the voices of the Dixiecrats and Republicans were drowned out.
But to the matter at hand, the Judicial Procedures Reform (JPR) Bill was introduced to the Senate on February 5, 1937, on request of the President. Officially, the JPR was intended to help lessen the workload of the Federal Judiciary by, most prominently, authorizing the President to appoint new coadjutor judges to the bench once a current judge had reached a certain age, around 70 years old (that detail varied as the legislation was negotiated). This remedy was needed because Federal Judges served for life and to change that provision would require the arduous process of amending the Constitution (two-thirds of both chambers of Congress and three-fourths of the states). These coadjutor appointments were not unlimited; the President could appoint no more than 50 coadjutors to the Lower Courts, which would bring the Supreme Court to a maximum of 15 Justices (six coadjutors).
However, all the talk of sharing and limiting workload was a pretense that was quickly dispensed with. The real intent behind the legislation was revealed: to significantly weaken the Supreme Court by allowing President Roosevelt to appoint a pro-New Deal Majority. The Supreme Court had actively stymied any government intervention into the private sector. It was in its so-called ‘Lochner Era’; from the 1905 case Lochner v. New York, wherein the Court asserted that capping working hours violated a 14th Amendment protected “right to contract.” By the Roosevelt Presidency, the court was divided into three camps: the anti-New Deal ‘Four Horsemen’ (Justices Butler, McReynolds, Sutherland, and Van Devanter), the pro-New Deal ‘Three Musketeers’ (Justices Brandeis, Cardozo, and Fiske Stone), and two swing votes (Chief Justice Hughes and Justice Roberts).
If the creation of the JPR could be attributed to a single day, it would be May 27, 1935 — Black Monday. It was on this day that the Supreme Court delivered three unanimous blows to the New Deal. The first: Humphrey’s Executor v. United States, which the Court limited the President’s authority to remove certain appointees without the consent of Congres. The second: Louisville Joint Stock Land Bank v. Radford, which struck down the Frazier-Lemke Farm Bankruptcy Act which limited farm repossession. And finally Schechter Poultry Corp v. United States, which struck down Section 3 of the National Industrial Recovery Act (and therefore gutted one of the New Deal’s legislative centerpieces).
The reason for the delay between Black Monday and the submission of the Judicial Procedures Reform Bill to the Senate is simple, the 1936 Elections. FDR needed to both get re-elected and increase his Congressional majorities, in order to strengthen his hand before striking at one of the co-equal branches of government. The elections that took place can only be described as a landslide, with FDR securing both the greatest modern Electoral College victory and a popular vote win by 24 percentage points. Democrats secured a further 6 seats in the Senate and another 12 in the House. The incoming 75th Congress would have some of the largest majorities since Reconstruction. The Senate would have 76 Democrats, 2 Minnesota Farmer-Laborers (aligned with the Democrats), 1 Wisconsin Progressive (aligned with the Democrats), 1 Independent (aligned with the Democrats), and only 16 Republicans. The Senate had an effective split of 80–16. The House was similarly skewed with 333 Democrats, 5 Minnesota Farmer-Laborers, 8 Wisconsin Progressives, and only 89 Republicans — for an effective split of 346–89. It was with these overwhelming majorities that FDR and his allies embarked on their attempt to break the Supreme Court’s power.
Following his win, FDR attempted to ensure that his Court Packing Plan was not too egregious in its power grab and tasked his Attorney General Homer Cummings with finding a method of limiting the court’s power, without being too distasteful as to not be passed. In a twist of fate, Cummings, who was at the time completing a history of the Justice Department, found an opinion written in 1914 by Woodrow Wilson’s then-Attorney General advising that Justices over the age of 70 who had served for at least 10 years and who do not retire should have a judge appointed over them. That proposal just happened to have been written by one James McReynolds, a now 75-year-old Associate Justice. Roosevelt had found his plan.
As mentioned above, the legislation was introduced on February 5, 1937 — one month into the 75th Congress’s First Session, which was promptly derailed and devolved into a session long knife-fight. The bill was incredibly controversial. Despite attempts by the President to use the bully pulpit to gain exterior support, the public never rallied around the plan — on average only 39% of the public supported the idea (Caldeira 1987). While it was customary to introduce a Presidentially supported legislation to the House, this bill was introduced into the Senate instead. This divergence from tradition was for two reasons. The first being that the Senate was thought to be the more difficult chamber to pass because of its potential full super majoritarian requirements for passage (instead of the modern three-fifths majority). The second reason being that it was considered to be better to strengthen a Senate weakened version of the bill in the House than have a House bill weakened in the Senate.
The chief-advocate for the legislation in the Senate was Arkansas Democrat and Majority Leader, Joseph T. Robinson. A close ally to the President, the “Fightingest” Man in the Senate had delivered New Deal legislation against the odds before and intended to deliver again, not the least because President Roosevelt had all but promised him the next new seat on the Supreme Court. A legislative leader of immense skill, he was the only hope for the legislation to pass through the Senate.
After being introduced to the Senate, the legislation was referred to the Judiciary Committee (hearings began on March 10) where it would fall prey to the power of the old committee system and the “Dean of Inconsistency,” Senator Henry Ashurst of Arizona. During the 1936 election, Ashurst opposed any move to reorganize the Supreme Court. Yet upon this bill’s introduction, he became a sponsor to the legislation stating “I’m for it, it’s a step in the right direction. It will be enacted into law immediately” (Johnston 1937). But when the legislation arrived at his committee it lingered for nearly 14 weeks, while being constantly assailed by the various anti-court packing groups that had developed since the legislation’s introduction. Instead of being pushed through by a united majority, the bill was picked apart and allowed to rot.
Further complications would endanger the bill, including White Monday in March, and a Supreme Court retirement in May. On White Monday, March 29, the Supreme Court upheld New Deal legislation in three cases, West Coast Hotel Co v. Parrish, Wright v. Vinton Branch, and Virginia Railway v. Federation. Two of which were unanimous decisions. When threatened, the court decided that its policy preferences had changed — the so-called Stitch in Time that Saved the Nine. Then in May, Willis Van Devanter announced his retirement (he would retire in June), which removed one of the ‘Four Horsemen.’ This posed a problem because Roosevelt had promised the seat to 64-year-old Majority Leader Robinson, and to appoint a new member of the court at such an age would reflect poorly on the President’s plan to limit the number of aged jurists. Fortunately (for the President), this dilemma would resolve itself before the end of the summer.
Eventually, after failed compromises in the Judiciary Committee, it issued its report on June 14 by a margin of 10–8, against the bill calling it “a needless, futile and utterly dangerous abandonment of constitutional principle … without precedent or justification” (Senate Judiciary Committee Report 1937).
Then began the floor debate, the final battle for the bill. First, a compromise amendment, sponsored by Senators Hatch and Logan, was agreed upon to limit internal Democratic opposition. The amendment would raise the age limit to 75 and limit coadjutor appointees to once per calendar year, amongst further limitations. This new proposal was issued on July 2 and debate began on July 6.
The debate was as fiery as it was contradictory. This can be exemplified by a July 10th speech by Senator Patrick McCarran of Nevada, a Democrat who increasingly opposed FDR after 1936. In an energetic speech, he described the legislation as such:
If an Executive veto can be placed against the will and judgment of one of the nine Justices of the Supreme Court — and that is what the substitute means, just as did the original bill — a veto can be placed against the will and vote of the nine Justices; if that can be done, the Supreme Court can be destroyed; if the Supreme Court can be destroyed in that way, the judicial branch of the Government can be destroyed; and if the judiciary branch of the Government can be thus destroyed, it is only tomorrow that an effort may be made to destroy the legislative branch of the Government. That has been done in other lands.
He went on to make an allegory between the proposed legislation and Weimar President Paul von Hindenburg’s signing of the Enabling Acts that gave Adolf Hitler dictatorial powers in 1933. However, almost immediately after that he went on to say “It is said — and I say it, too — that the Executive in the White House has no intention to become a dictator; I say it unhesitatingly” and “I believe that Franklin Delano Roosevelt wants to serve democracy in a democratic way. I love him, I have too much respect for him, I have too much respect for my President, ever to intimate anything to the contrary” (The Congressional Record 1937). The rapid switch from implying FDR is the next Hindenburg, to asserting his love for him, is a truly mind-boggling incident of intentional cognitive dissonance; as McCarran is patently attempting to argue against the bill in strictest terms while attempting to avoid the wrath of his Party’s leader.
The single legislative day of July 6 would drag on for eight calendar days, only stopped when the debate took the life of its chief proponent and only hope. As on July 14, Joseph T. Robinson was found dead in his apartment, in his pajamas holding his copy of The Congressional Record. With Robinson’s death, the bill was doomed. Hard-boiled former Speaker of the House, and then Vice-President, John Nance Garner told President Roosevelt, “You are beat. You haven’t got the votes” (McKenna 2002).
Finally, on July 22, a whopping 23 weeks after it had been submitted to Congress, the plan was delivered its death blow. A motion by Senator Logan sent the legislation back to the Judiciary Committee with orders to strip the bill of all language pertaining to coadjutors (i.e. the primary purpose of the legislation). That motion succeeded 71–21 (with the missing four votes coming from three absent Senators, and an unfilled Senate seat). An odd death, for an odd bill — it was not voted down, it was voted away with orders to die.
However, even though the court-packing plan died, the bill did not. As after it was stripped of the coadjutor language the bill was reported once more back to the floor on July 29. This sized-down bill only reformed the procedures of lower courts by giving the government notice of suits with constitutional implications, allowing government attorneys to appear in constitutionally important cases, expediting appeals to the Supreme Court, limiting constitutional injunctions to three-judge panels as opposed to lone judges, and limiting the injunctions to 60-days. This legislation was signed into law on August 26. However, the Supreme Court would no longer attempt to gut the New Deal legislation as it once had, and soon Roosevelt appointees would flood over the Court and ensure that the Four Horsemen would ride nevermore. This fight was over, Roosevelt had lost the battle, but won the war.
Under the theory of Pivotal Politics, one would have expected that it was just the rump left flank of the Democratic Party who had voted against sending the bill back to committee. Comparing the means of the DW-Nominate Score of the pro-plan and anti-plan Democrats is misleading. Pro-plan Democrats average at -.3016 and anti-plan Democrats average at -.1894. Statistically, this would seem to conform to Pivotal Politics, however as seen by Figure 1, this is not the case as the Democratic ‘no’ votes (i.e. pro-packing) are spread out across the entirety of the Democratic Caucus, not just the leftmost flank. If anything, the most progressive Democratic Senator (Guffey, PA) and the most conservative Democratic-aligned Senator (Lundeen, MN), show how deceptive relying on just the means would be.
So, how could the coalition that was assembled to stop the plan from failing explain what happened? Proximity to the President and Party Loyalty. Three main factors were used to achieve this determination: locality, historical closeness to the President, and date of the election. Every Senator, save one, was noted as either being a Southern Democrat, a hardline New Dealer, or a newcomer to the Senate (see Figure 2). Southern Democrats were insulated from most political pressures by Jim Crow and were incredibly powerful political machines, which allowed them the ability to decide based on their personal preferences, not electoral incentives. New Dealers (determined by if their biographies explicitly mentioned a connection to the New Deal or President Roosevelt) would vote to protect the plan because they had every ideological interest in protecting the New Deal from the Supreme Court. Further, Senator Black was unique in his interest in maintaining his closeness to the President, as he would be Justice Van Devanter’s replacement on the Court, to be confirmed in August. Finally, newcomers who were elected on presidential coattails, of which many participated in their first Senatorial debate with the court-packing plan (a total of seven, eight if the fresh defection of G. Norris is included), were unlikely to rock the boat and make enemies of the President within a few months of entering office. They were the most likely to be good soldiers following orders, outside of the dyed-in-the-wool New Dealers. Thus, the pro-plan coalition was a heterogeneous mixture of those electorally secure (Dixiecrats) and insecure (coattail riders/newcomers), but mutually secure in their commitment to the President and the Party.
If the Judicial Procedures Reform Bill is an example of pivotal politics, it is highly atypical, where ideological preferences were supplanted by proximity to the President. A final and further elaboration of how poorly the traditional pivotal politics theory applies to this vote is that the sponsor of the motion to kill the plan, Senator Logan, was further to the left (-0.392) than the mean of the pro-plan camp (-0.3016) — and that it was Senator Logan’s compromise amendment (Hatch-Logan) that was voted down. Under traditional pivotal politics, Hatch-Logan would have been closest to the preferences of the median voter, and thus secured passage, not be voted down by one of its sponsors.
The Court Packing Plan is often remembered, but the details of its aborted attempt at a Constitutional revolution are often forgotten. It is a bill that ended an era for the Supreme Court and ended a life. A bill that stymied the strongest legislative majority since Reconstruction, but created a reaction so strong that it achieved its objective — saving the New Deal — without even being passed.
Boeckel, Richard M. “Record of the 75th Congress.” CQ Researcher, CQ Press, library.cqpress.com/cqresearcher/document.php?id=cqresrre1937082200.
Caldeira, Gregory A. “Public Opinion and The U.S. Supreme Court: FDR’s Court-Packing Plan.” The American Political Science Review, vol. 81, no. 4, 1987, pp. 1139–1153. JSTOR, www.jstor.org/stable/1962582. Accessed 9 May 2020.
Johnston, Alva (December 25, 1937). “The Dean of Inconsistency”. The Saturday Evening Post. 210: 23, 38–40.
McKenna, Marian C. Franklin Roosevelt and the Great Constitutional War: The Court-Packing Crisis of 1937. Fordham University Press, 2002.
Senate Committee on the Judiciary, Reorganization of the Federal Judiciary, S. Rep. №711, 75th Congress, 1st Session, 1 (1937).
United States, Congress, “Congressional Record: Proceedings and Debates of the First Session of the Seventy-Fifth Congress of the United States.” Congressional Record: Proceedings and Debates of the First Session of the Seventy-Fifth Congress of the United States, vol. 81, G.P.O., 1937, pp. 7022–7023. https://www.govinfo.gov/app/collection/crecb/_crecb/Volume 081 (1937)/GPO-CRECB-1937-pt7-v81