Young America’s Foundation is committed to ensuring young people understand the dangers of court-packing, following President Joe Biden’s unveiling of a commission to study expanding the Supreme Court. This is the first piece in a two-part series by historian Dr. Burt Folsom examining these dangers.

“A bonehead idea.” So said Joe Biden in 1983 about President Franklin Roosevelt’s plan to pack the U.S. Supreme Court with new justices back in 1937.  “It was a terrible, terrible mistake,” then Senator Biden said, because it would destroy “the independence of . . . the Supreme Court of the United States.”

Here are three central questions we need to ask and answer:  Why is an independent Supreme Court so important?   Why did President Roosevelt (FDR) try to pack the Supreme Court?  And why has President Biden now changed his mind about court packing?

The Independent Supreme Court

The Supreme Court, the President, and Congress, help compose the three branches of government set up by the U.S. Constitution.  In other words, the Founders carefully carved up political power among the executive, legislative, and judicial branches.  Why? Because liberty can turn into tyranny if power is concentrated.  From a careful study of history, the Founders knew that in country after country, liberty had always degenerated into tyranny over time.  Only by the “separation of powers” could tyrants be stopped and freedom preserved.

The Founders wanted the different branches of government to check one another, not combine their strength.  For example, the president has the power to appoint justices to the Supreme Court, but the Senate has to approve them.  Congress itself was to set the number of justices to sit on the Supreme Court.  The House and Senate finally set the number of justices at nine in the Judiciary Act of 1869.  Their goal was to preserve what Founder Alexander Hamilton called, “the independent organization of the Supreme Court” from outside pressures.  To be independent, Hamilton concluded the Court had to be free from “the pestilential breath of [party] faction.”

FDR Tries to Pack the Supreme Court 

Franklin Roosevelt was the first president to challenge the idea of an independent Supreme Court.  Not surprisingly, he was also the first president to drastically expand the role of the president and of Congress beyond what the Constitution allowed.  For example, on the issue of charity, the Constitution made it private and voluntary—people were to help other people.  But FDR wanted the federal government to raise taxes and have the government supply charity—especially in those states he needed to win re-election.  In a similar manner, the Constitution kept government out of farming; farmers were to sell their crops for market prices determined by supply and demand.  Roosevelt, however, wanted farmers to vote for his re-election, so he supported a law allowing government bureaucrats to set some farm prices, and even pay farmers not to plant crops on part of their land.  When the Supreme Court struck down that law, and many other FDR laws as unconstitutional, the president was furious. He controlled the presidency, of course, and Congress as well through his liberal leaders—but not the Supreme Court, so he could not fully regulate the economy through his New Deal programs.

After Roosevelt won re-election in 1936, he decided to promote a law to pack the Supreme Court with as many as six new justices, all of whom he would appoint.  Since he had a majority of liberals in Congress, FDR believed he could use them to pass the law giving him power over the defiant Court—especially if he doled out federal cash and favors to liberal senators to use in their states to keep voters happy.

After announcing his goal to pack the Supreme Court, FDR began inviting liberal senators, one by one, to the White House to offer them political favors in return for their votes for court packing.  According to Senator Claude Pepper of Florida, when he entered the Oval Office, FDR immediately turned on the charm.  “The president,” Pepper recalled, “was not above a little logrolling, promising to help me win re-election in 1938 and, in my presence, notifying the army that he wanted to see some favorable action on a Florida canal project that I had been pushing.”  Senator Pepper merrily left the White House that day as a new supporter of court- packing.

With FDR seeking to unify all three branches of government under his direction, liberty in America was in danger.  The small band of conservatives in the House and Senate shrewdly deferred to influential Senator Burton Wheeler of Montana.  Wheeler was aghast at Roosevelt’s lavish promises of patronage, but he told Senator Harry Byrd of Virginia, “Most members of the Senate are lawyers.  Deep down, they agree with you and me, but they’re like a lot of mercenaries.  They want patronage.  A small army that believes in principle can lick a bunch of mercenaries, and we’ll lick them.”

Wheeler’s view was tested quickly when the Senate debate began.  Some Senators, including Patrick McCarran of Nevada, began expressing reservations about FDR’s bill.  Jim Farley, the president’s henchman and dispenser of patronage, immediately issued a veiled threat.  He asked how Senator McCarran could “afford not to vote for the bill if [he] ever wanted anything from the administration?”  McCarran, however, was not intimidated; he was angry.  He had been bedridden but, against doctor’s orders, he rose up, went to the Senate floor, and said he didn’t care if what he said meant political death.  “I think this cause [of protecting freedom] is worthy of any man’s life.”  Even if he was signing his “death warrant,” herefused to vote to pack the Court.

McCarran’s courage was contagious.  Other Senators began to put the independence of the Supreme Court before the federal patronage the president was dispensing.  Three key senators—Millard Tydings of Maryland, Walter George of Georgia, and Ed Smith of South Carolina—bravely defended the separation of powers, and when they did, others joined them.  In the end, for the first time in his presidency, FDR was soundly defeated on a bill he urgently wanted.

But Roosevelt did not give up.  He still wanted the powers of government under his direction.  To achieve that, after his Court defeat, he knew he would first have to break the Senate.  His first step was to install his trusted ally Alben Barkley of Kentucky as Senate majority leader, following the death of the existing leader. The president had to twist arms in Chicago to convert a key Illinois Senator, but Barkley squeaked out a one-vote victory in the Senate election.

The president next moved to “purge” Senators Tydings, George, and Smith, who had courageously fought and defeated the president’s Court-packing plan.  Those three senators were up for re-election in 1938, and FDR hand-picked and helped finance candidates to run against those pesky incumbents.

With the threat of one-man rule at hand, many Americans began to ponder the future of their country.  Gallup polls, for example, began asking Americans if they thought their country was in danger of becoming a dictatorship—45% said “yes” at one point.  The 1938 midterm elections, therefore, arguably became the most important midterm elections in U.S. history.  After a heated campaign, the results were clear:  First, Tydings, George, and Smith all won landslide elections over FDR’s challengers.  Second, the Republicans, who were mostly conservative,  gained 81 seats in the House and eight in the Senate—the largest gain of seats conservatives or liberals had in any election in the U.S. in the 20th century.  In other words, Roosevelt was repudiated.  The independent Supreme Court survived.

Come back tomorrow for part two of this series, as we examine President Biden’s power-grabbing attempt to pack the court.


Dr. Burt Folsom serves as a distinguished fellow at Hillsdale College.