PEOPLE POWER
When FDR Tried to Pack the Supreme Court—and Lost
Franklin Roosevelt’s 1937 bid to enlarge the Court collapsed in Congress, even as the judicial resistance that provoked it began to fade.
Franklin Roosevelt sought authority to add up to six Supreme Court justices in 1937. Congress rejected the plan, but later rulings and vacancies still reshaped the Court.
On February 5, 1937, Franklin D. Roosevelt asked Congress to let him add a Supreme Court justice for every sitting justice older than 70 who did not retire within six months. Six members met that condition. The proposal could have enlarged the Court from nine justices to 15. [1]
Roosevelt had just won reelection in 46 of 48 states, and the Court had struck down major New Deal laws. But the measure, formally the Judicial Procedures Reform Bill, met resistance from Republicans and from Democrats who otherwise supported much of Roosevelt’s program. Congress never enacted it. [1][2]
The episode became known as court packing. It was a major defeat for Roosevelt in Congress, even though vacancies and changing rulings soon gave him much of what he wanted: a Court more receptive to economic regulation.
Why Roosevelt Wanted Change
The conflict grew from the Court’s response to the New Deal. In 1935, the justices unanimously invalidated the National Industrial Recovery Act in *Schechter Poultry Corp. v. United States*. The Court also struck down the Frazier-Lemke Farm Bankruptcy Act that day. In January 1936, it invalidated the Agricultural Adjustment Act in *United States v. Butler*. [2][3]
These rulings did not mean that every justice opposed all federal regulation. They did, however, put central pieces of Roosevelt’s domestic program at risk. The administration faced a choice: wait for openings on the Court or seek a way to create new seats.
Roosevelt chose the latter. He and Attorney General Homer Cummings developed the plan privately, without first building support among congressional leaders. [2]
An Argument About Age and Workload
The administration initially presented the bill as a response to aging judges and slow-moving courts. Roosevelt argued that judges who remained in office after age 70 might be unable to keep up with their work. The plan applied across the federal judiciary, but its consequences for the Supreme Court drew the public’s attention. [2][4]
The age argument exposed an immediate problem. Justice Louis Brandeis, one of the Court’s liberal members, was 80. The plan’s critics saw the workload rationale as a cover for an effort to change the Court’s ideological direction.
On March 9, Roosevelt made a broader case in a Fireside Chat. He argued that constitutional principles had to be applied to modern economic conditions. [5]
Congress had authority to determine the size of the Supreme Court, but many lawmakers regarded this particular use of that authority as dangerous. They worried that a president could seek more justices whenever the Court issued unwelcome decisions.
Hughes Challenges the Case for Expansion
Chief Justice Charles Evans Hughes responded without making a public political speech. In a March 21 letter to Sen. Burton K. Wheeler of Montana, a leading Democratic opponent of the proposal, Hughes said the Court was current in its work and did not need additional justices to handle its docket. Wheeler presented the letter to the Senate Judiciary Committee the next day. [6]
The letter struck at the administration’s stated case for the bill. Brandeis supported Hughes’s response, adding to the difficulty Roosevelt faced in portraying the dispute as a simple fight between reformers and reactionaries. [6]
Opposition did not fall neatly along party lines. Wheeler and other Democrats opposed Roosevelt’s proposal even while supporting parts of the New Deal. Their concern was institutional: an expansion prompted by disfavored decisions could make future expansions easier to justify.
On June 14, the Senate Judiciary Committee issued an adverse report and recommended that the Senate reject the bill. [4]
The Court Changes Course
As the legislation moved through Congress, Supreme Court decisions reduced the sense of urgency behind it. On March 29, 1937, the Court upheld Washington State’s minimum-wage law in *West Coast Hotel Co. v. Parrish*. On April 12, it sustained the National Labor Relations Act in *NLRB v. Jones & Laughlin Steel Corp.* [1][2]
These decisions are often tied to the phrase “the switch in time that saved nine,” commonly associated with Justice Owen Roberts’s votes. The phrase captures the change in outcomes, but not a settled explanation for it. Scholars continue to debate why Roberts changed his approach. [1][2]
Then Justice Willis Van Devanter announced his retirement in May. Roosevelt had a conventional vacancy to fill, without changing the Court’s size. He later nominated Alabama Sen. Hugo Black for the seat. [2]
The bill still had supporters in the Senate. Majority Leader Joseph T. Robinson of Arkansas pursued a compromise, but he died suddenly of a heart attack on July 14, as the fight continued. His death weakened the administration’s legislative effort. [7]
On July 22, the Senate voted 70–20 to recommit the judicial enlargement measure to committee. The plan was finished. [1][2]
A Defeat, Then a Reshaped Court
Roosevelt failed to enlarge the Supreme Court. Yet the immediate legal conflict did not end with the Senate vote. The Court’s 1937 rulings upheld important regulatory laws, and later vacancies gave Roosevelt the appointments he had sought through legislation.
By Roosevelt’s death in 1945, he had appointed eight associate justices and elevated Harlan F. Stone to chief justice. [4]
The 1937 fight showed both the limits of electoral power and the importance lawmakers attached to judicial independence. Roosevelt could reshape the Court through ordinary appointments. He could not persuade Congress to let him change its size in the middle of a constitutional clash.
Frequently Asked Questions
How many justices did FDR want to add to the Supreme Court?
Roosevelt’s plan could have added as many as six justices. It authorized an additional justice for each sitting justice over 70 who did not retire within six months; six justices met that condition in 1937. [1]
Did Roosevelt ever appoint Supreme Court justices?
Yes. The court-packing bill failed, but Roosevelt filled later vacancies through the usual appointment process. By 1945, he had appointed eight associate justices and elevated Harlan F. Stone to chief justice. [4]
What was the “switch in time that saved nine”?
The phrase refers to the Court’s 1937 decisions upholding key regulatory laws, including the minimum-wage ruling in *West Coast Hotel* and the labor-law ruling in *Jones & Laughlin Steel*. It is often linked to Justice Owen Roberts, though the reasons for his shift remain disputed. [1][2]
TIMELINE
Key moments
Sources
- FDR's 'Court-Packing' Plan — Federal Judicial Center
- How FDR lost his brief war on the Supreme Court — National Constitution Center
- FDR & The Court Packing Controversy: Full Script — Supreme Court Historical Society
- February, 1937 - FDR: Day by Day — Franklin D. Roosevelt Presidential Library and Museum
- Fireside Chat on Reorganization of the Judiciary — National Archives and Records Administration
- Speeches: Chief Justice Charles Evans Hughes — Supreme Court of the United States
- FDR's Court-Packing Plan: A Second Life, a Second Death — Duke Law Journal
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