compulsory retirement at the age of seventy and that he
should be allowed to appoint up to six new justices. This
plan, which Roosevelt presented as the Judiciary
Reorganization Bill, would have sufficed to remove the
justices who had been appointed earlier by more
conservative administrations and who had most strenuously
opposed the New Deal.
Though Roosevelt skillfully tried to win popular support for
the measure, opinion polls suggested that only about 40
percent of the population was in favor of the plan. Louis
Brandeis was now a Supreme Court justice. Though
Brandeis sympathized with much of Roosevelt’s legislation,
he spoke against the president’s attempts to erode the
power of the Supreme Court and his allegations that the
justices were overworked. Roosevelt’s Democratic Party
had large majorities in both houses of Congress. But the
House of Representatives more or less refused to deal with
Roosevelt’s bill. Roosevelt then tried the Senate. The bill
was sent to the Senate Judiciary Committee, which then
held highly contentious meetings, soliciting various
opinions on the bill. They ultimately sent it back to the
Senate floor with a negative report, arguing that the bill was
a “needless, futile and utterly dangerous abandonment of
constitutional principle … without precedent or justification.”
The Senate voted 70 to 20 to send it back to committee to
be rewritten. All the “court packing” elements were stripped
away. Roosevelt would be unable to remove the constraints
placed on his power by the Supreme Court. Even though
Roosevelt’s powers remained constrained, there were
compromises, and the Social Security and the National
Labor Relations Acts were both ruled constitutional by the
Court.
More important than the fate of these two acts was the
general lesson from this episode. Inclusive political
institutions not only check major deviations from inclusive
economic institutions, but they also resist attempts to
undermine their own continuation. It was in the immediate
interests of the Democratic Congress and Senate to pack
the court and ensure that all New Deal legislation survived.
But in the same way that British political elites in the early
eighteenth century understood that suspending the rule of
law would endanger the gains they had wrested from the