Jasper Finke, Crisis and Law - New York University School of Law

administration exerted on the Court. In their view, by adhering to what Roosevelt had called a
horse-and-buggy definition of interstate commerce, 31 it prevented the necessary measures to
overcome the Great Depression. Furthermore, Roosevelt considered his 1936 landslide victory at
the polls a popular endorsement of the New Deal. From his perspective, the Court, by
continuously invalidating New Deal laws and policies, stood against the will of the people.
Roosevelt and his closest advisors designed a seemingly simple solution. On 5 February
1937 the President announced his court-packing plan to the wider public. 32 As the number of
Supreme Court Justice was not determined by the Constitution itself, it could be changed by
federal legislation. Thus, the court-packing plan was to introduce legislation that would have
allowed the President to appoint a new Justice for any Justice on the bench who did not resign
within six weeks of his or her 70th birthday. As six out of nine Justices were already older than
70, the bill, if it had passed Congress, would have enabled FDR to add six new Justices at once –
the maximum number of appointments the bill allowed. The timing was certainly no coincidence,
seeing as the Court had scheduled oral hearings concerning the constitutionality of the NLRA
(also called the Wagner Act cases) for the following week. Thus, when the Court upheld the
Washington State minimum wage law in West Coast Hotel on 29 March 1937 and the NLRA in
Jones & Laughlin, the answer as to why the Court decided the way it did seemed to be evident:
the Court had bowed to political pressure. 33 “[T]he reformist President’s threat of packing the
Court provoked the conservative Justices to consider the wisdom of continued resistance.” 34
31
Press Conference, 31 May 1935 in reaction to the Court’s decision in Butler v. U.S. in which the Court
held the AAA unconstitutional.
32
Solomon, FDR v. The Constitution, 7 et seq. and 84 et seq. for a detailed account of how the plan was
devised and made public; see also Cushman, Rethinking, 11 et seq.
33
Feldman, Scorpions, 117.
34 Ackerman, We The People - Foundations, 49.