Roosevelt ’ s plan would have immediately given him six appointments to the Supreme Court and up to 44 appointments for federal lower courts . Roosevelt argued that “ a constant and systematic addition of younger blood will vitalize the courts .”
On March 9 , 1937 , Roosevelt told the nation in a radio address that the Court was ruling not just against himself and Congress , but against the will of the American people , themselves .
“ Last Thursday I described the American form of Government as a three horse team provided by the Constitution to the American people so that their field might be plowed . The three horses are , of course , the three branches of government — the Congress , the Executive , and the Courts .
“ Two of the horses are pulling in unison today ; the third is not . Those who have intimated that the President of the United States is trying to drive that team , overlook the simple fact that the President , as Chief Executive , is himself one of the three horses .
“ It is the American people themselves who are in the driver ’ s seat . It is the American people themselves who want the furrow plowed .
“ It is the American people themselves who expect the third horse to pull in unison with the other two .” “ The Courts ,” Roosevelt boomed , “ have cast doubts on the ability of the elected Congress to protect us against catastrophe by meeting squarely our modern social and economic conditions .”
Roosevelt ’ s critics were aghast at his plans . They claimed he was trying the “ pack the Court ” with justices who would simply be his yes men .
Reacting to his critics , Roosevelt cut to the heart of the matter :
“[ I ] f by that phrase the charge is made . . . that I will appoint Justices who will not undertake to override the judgment of the Congress on legislative policy , that I will appoint Justices who will act as Justices and not as legislators — if the appointment of such Justices can be called ‘ packing the Courts ,’ then I say that I and with me the vast majority of the American people favor doing just that thing — now .”
Congress never voted on the plan ; it ’ s unclear whether it would have succeeded , or if a more moderate plan that would have given him only two or three justices might have worked .
On March 29 , 1937 , a Washington state minimum wage law came before the Supreme Court in West Coast Hotel Co . v . Parrish . The law in question was nearly identical to the New York state law that that had come before the Court and been struck down a year earlier . But this time , Justice Owen Roberts abandoned the Four Horsemen to uphold Washington state ’ s minimum wage law in a 5-4 decision .
46 x The Trial Lawyer
In a series of 5-4 decisions two weeks later , the court upheld the National Labor Relations Act as constitutional . The ruling , reflecting the success of FDR ’ s pressure campaign , was astonishing .
Labor Secretary Frances Perkins was close friends with Justice Roberts ’ s wife , Elizabeth . When the decisions came down , according to Perkins ’ s biographer Kirstin Downey , “ she rushed that afternoon to Roberts ’ home ” and “ threw her arms around the man and hugged him .”
“ Owen , I ’ m so proud of you ,” Perkins told the Supreme Court justice . “ A man of your standing and intelligence who is not afraid to change his mind !” Downey writes on how Roberts was embarrassed by the affection , but also very pleased . “ Really , do you think so ?” he replied to Perkins , preening .
Less than two months later , the Court declared that Social Security was constitutional .
The New Deal had been saved from execution by the Supreme Court . Social Security had been salvaged and the National Labor Relations Act gave labor and unions a lifeline after 40 years of fighting to stay afloat .
Shortly after the Supreme Court upheld Social Security , Willis Van Devanter , one of the Four Horsemen , retired from his position after 26 years on the bench . This gave Roosevelt his first Supreme Court pick : Hugo Black . Less than a year later , Roosevelt got his second pick when Justice George Sutherland announced that he was retiring .
By the end of his 12-year presidency , Roosevelt ended up appointing nine new members to fill eight of the nine seats on the Supreme Court ( one , Byrnes , only served a year and a half and was then replaced by another FDR appointee ).
Roberts ’ s about-face in West Coast Hotel was referred to at the time as “ the switch in time that saved nine .”
But despite the catchy phrase to describe Roberts ’ s switch , the relationship between Roberts ’ s vote and Roosevelt ’ s plan is not clear . Historians still argue over why Roberts switched and whether he was already planning to switch his vote on these cases before Roosevelt introduced his plan to pack the Court .
They also argue over why the Democratic-controlled Senate buried Roosevelt ’ s court-packing bill in July 1937 . At the beginning of that year the American people were overwhelmingly supportive of Roosevelt , Congress , and the New Deal . At the same time , the American people showed nothing but contempt toward the Supreme Court for “ legislating from the bench .”
There ’ s already legislation before Congress to expand the Court , and a growing consensus among Americans that it ’ s time for just that . President Biden should take a lesson from FDR , although he ’ s probably wise to wait until after the election so as not to stir up too much Republican outrage .
Eventually , however , America is going to have to undo the damage of the rightwing billionaires who ’ ve paid to fill today ’ s court with radical ideologues .