Court Packing: The Drafting Recalled

Warner W. Gardner

In early October, 1936, Solicitor General Stanley Reed assigned me to Attorney General Homer Cummings for some research assistance. It is not irrelevant that I was then a week or two past my 27th birthday. Cummings said that if Roosevelt were reelected, as was expected, he was determined to move against the five or six Justices who were so stubbornly opposed to any government regulation that nothing could be done to strengthen the still devastated economy of the nation. I was to survey every suggestion short of constitutional amendment that had been made, and to report back as soon as feasible after the election.

I must have made occasional oral reports to Cummings or Reed, but don't recall any. On December 10, 1936,1 handed in a 65-page memorandum entitled "Congressional Control of Judicial Power to Invalidate Legislation." I am confident that neither the Department nor the White House had made any other constitutional inquiry undergirding the President's proposal of February 5, 1937. In rereading the paper a half century later, I consider it well short of perfection but adequate to the need. In 1981 I sought retrieval of the paper, which had been in the 40-year custody of Paul Freund pending completion of his Holmes Devise history of the "New Deal" Court. In returning a copy, Paul remarked that the paper "has stood the test of time very well." I replied,

The paper concluded that the Court's constitutional review had solid historical support; that the Court would not accept a Congressional declaration that the legislative findings of fact were conclusive; that Congress could not oust state courts of constitutional review unless there were a federal court alternative; that the Congress could not enact a "procedural" rule which specified the number of votes required to declare an act unconstitutional; and that the Court would invalidate a statute which excised constitutional adjudication from the jurisdiction of federal courts. Finally, a didactic one-page discussion concluded, "There is no possible doubt as to the power of Congress to regulate the number of judges who shall constitute the Court." I indicated that it seemed undesirable, chiefly on administrative grounds, but thought this must be weighed against the fact that only this expedient was assuredly constitutional.

After some considerable discussion with Cummings I was told to go draft a bill. In the course of drafting I thought that I had found a solution to the administrative problems which had earlier concerned me. If an additional Justice were appointed for each Justice over 70 who had not retired, and without a subsequent appointment on the retirement of the over-70 judge, the Court would fall back to nine members as the old codgers retired.[1] The result was a pure confrontation of power, would surely work to make retirement at 70 invariable, and would do no other harm to the functioning of the Court. At the age of 27 it is axiomatic that senility settles in from the 70th year forward, a conclusion I find dubious in my 80th year. I was in any case highly pleased to find so neat a solution to the constitutional crisis.

Cummings and I spent a morning with the ubiquitous Tommy Corcoran and Ben Cohen, finding that they were in strong support and without suggestions for change.[2] Cummings, early in the White House consideration of the bill, twice dispatched his young assistant to represent the Department at the White House. One was a morning conference with Roosevelt as he lay abed (that being easier for him than strapping himself into braces and a wheel chair) and the other a lunch with the White House aides, chaired by Jimmy Roosevelt. But after that, probably from early January, I was not part of the consultative process, but would draft or revise according to Cummings' instructions.

To my dismay, the stated purpose of the bill was transformed into a measure to relieve the Justices of their crushing burden of work, made especially difficult by their advanced age. An additional Justice was to be appointed for each that was over 70, but the addition was permanent and subject to a maximum of 15. The justifying papers, from the President's message on down, spoke almost exclusively of overwork, with little or no reference to judicial usurpation of power. As the Justices were not overworked, and were comfortably discharging their duties, a constitutional confrontation that men could fight for became an exercise in Madison Avenue sleaze.

I have never known the origin of this strategy, but have always guessed that Carl McFarland, who was very close to Cummings and of a notably practical cast of mind, may have been responsible. If I had been somewhat older, I would probably have begged out of the subsequent drafting, but as it was I stated my disagreement and continued to work as I was directed. Out of a fine schoolboy honor, I complained to none of the distortion of my handiwork. I did no work on any of the justifying memoranda or statements; I cannot now remember whether I managed to avoid it or was never asked.[3]

On February 5, 1937, the President sent to the Congress his "Court-packing" message and bill. A substantial majority of the legal profession and of the press were in shocked dissent.

The Senate hearings[4] opened with a statement by Cummings on March 10 and one by Bob Jackson, then in charge of the antitrust division, the next day. When they are reread 50-odd years later, the Cummings statement, directed exclusively to the unfair burden cast on these aged men, was a smoothly crafted bit of hokum, while the Jackson statement, which never mentioned over-work but only judicial tyranny, was a brilliantly effective demonstration of what the matter was really about.[5]

The Court-packing bill died, by an almost unanimous vote of the Senate Judiciary Committee, in May 1937. A crumb tossed to the Administration was passage of the judicial retirement bill, which by keeping a retired Justice eligible for Article III service served to give him constitutional protection against a salary reduction after retirement. Associate Justice Willis Van Devanter retired under its provisions on June 2, 1937. In fact, however, the Administration, although ignominiously defeated in the Congress, had already won its campaign in the Court.

On March29, 1937, about a week short of two months after Roosevelt's message, the Court by a 5-4 vote in West Coast Hotel Co. v. Parrish, 300 U.S. 379, held constitutional the state of Washington law fixing minimum wages for women, thereby overruling Adkins v. Children's Hospital, 261 U.S. 525(1923), and More-head v. New York ex rel. Tipaldo, 298 U.S. 587 (1936), which had been decided only the year before. West Coast Hotel was argued on December 16 and 17 and in normal course the Justices would have voted on the following Saturday. The final vote could have reflected sua sponte reformation, or Charles Evans Hughes and/or Owen Roberts could have changed their vote in February. Whether the result was due to the Court-packing project can be, and has been, argued either way. The case in favor of sua sponte reform is strengthened by the circumstance that Tom Harris has told me that Harold Leventhal, Stone's clerk, of that year, said that the vote was taken before the Court-packing bill was announced.

West Coast Hotel was followed in April by a series of cases which by a 5-4 vote sustained the power of Congress to protect collective bargaining where the work was in or affected interstate commerce.[6] In May the Court, again by a 5-4 margin, upheld state and federal social security taxes, levied to support payments to the unemployed and the aged.[7] The Court was not again, at least during the next half century, to hold that the common law rights of contract and property were beyond the reach of regulatory legislation.

It is accepted wisdom that the extravagances of Court packing were unnecessary, and that the process of attrition would in ordinary course have produced this shift in constitutional doctrine. So, one may suppose, it would have. But who can know how long that process would have taken, nor what would have happened to a country still devastated and yet unable to enact corrective legislation? The Court, long after the event, has itself attested to the impact of the effort. Justice White, writing for the Court in Bowers v. Hardwick, 478 U.S. 186, 194-95 (1986), said:

I thought that I owed Stone a confession, and called upon him in order to admit authorship of the bill. He was not distressed, but made response in terms humiliating to one possessed of the maturity of 27 years. He chuckled and said, "after all, you were very young."

1. I cannot recall whether I developed this on my own or whether my attention had been drawn to the fact that a broadly similar proposal had in the 1913-1916 period been broadly similar proposal had in the 1913-1916 period been made in respect of lower federal court judges by the House Committee. President Taft, and Attorney general McReynolds.
2. Joe Rauh has been emphatic and vociferous that Cohen and Corcoran were shocked and were opposed to the bill. I do not know whether Joe has given full rein to a somewhat romantic memory or whether their distaste arose when the bill was fundamentally changed before its public proposal.
3. It is only fair to note that, as bets I can recall, I am more outraged now than I as in 1937 at the transformation of my handiwork into what seems to have been an effort to market deceit. I was probably made tolerant by a feeling of team rapport: we were all working together to achieve an important goal and nobody had elected me captain.
4. Hearings before the Senate Committee on the Judiciary on S. 1392. 75^th Cong., 1^st Sess. (1937).
5. Among other points, he explained that the Court's membership was changed from 6 to 5 in 1801, to 6 in 1802, to 7 in 1807, to 9 in 1837, to 10 in 1863, to 8 in 1866, and to 9 in 1869; in each case the motivation was blatantly political.

A year later Bob Jackson became Solicitor General and I worked very closely with him. But in 1937 we were barely acquainted and our views, while identical, were independently developed.

6. N.L.R.B. v. Jones & Laughlin, 301 U.S. 1 (1937); Labor Bd. v. Fruehauf Co., 301 U.S. 49 (1937); Labor Board v. Clothing Co., 301 U.S. 58 (1937); Associated Press v. Labor Board, 301 U.S. 103 (1937).
7. Carmichael v. Southern Coal Co., 301 U.S. 495 (1937); Steward Machine Co. v. Davis, 301 U.S. 548 (1937); Helvering v. Davis, 301 U.S. 619 (1937).