Contents - Constitutional Court of Georgia

Swamping the Lords, Packing the Court, Sacking the King. Three Constitutional Crises
disastrous for his New Deal, the topic had nonetheless loomed large during the election battle. 55
It was clear to everyone that Roosevelt would, or would have to, come up with a plan ‘to curb the
Court’. But how?
* * *
Initially the President shrouded himself in mystery. Still in his initial term in office he had addresse d
the Congress on 6 January 1937 in the annual State of the Union speech, saying, inter alia: ‘The vital
need is not an alteration of our fundamental law but an increasingly enlightened view in reference
to it’. 56 Fourteen days later he delivered his second inaugural address in the pouring rain, saying:
‘The Constitution of 1787 did not make our democracy impotent’, 57 words that emitted a similar
kind of veiled threat as the language used thirty years earlier by Prime Minister Campbell-Bannerman
in the House of Commons: ‘But Sir, the resources of the British constitution are not wholly
exhausted’. 58
On 5 February 1937 the vagueness ended. On that day FDR sent a message to Congress that
came as a bombshell. It was a proposal ‘to reorganize the judicial branch of the federal government’
and took the form of a bill plus explanatory memorandum. 59 The proposal covered not only
the Supreme Court, but also the entire federal judiciary, and comprised various elements that cannot
all be discussed here. By far the most interest was shown in the following, however. In Article
III, the Constitution stipulates: ‘The judges, both of the Supreme and inferior courts, shall hold their
offices during good behavior’. Unlike the judges in most of the states, who are often elected – and
then for specific periods, federal judges are appointed for life and cannot even be dismissed on
grounds of age. So America had had many ancient judges, and even after Congress had made provision
for certain pensions for federal judges, they frequently preferred to carry on to their dying
day. Roosevelt was now proposing that he should appoint additional judges throughout the federal
judiciary, which at the time numbered 237 judges, in all those cases where a judge over the age
of seventy declined to avail himself of the opportunity to leave the service on full pay. 60 Judges in
the inferior courts already had this right, which was now also being granted to the justices of the
Supreme Court in a bill pending before Congress which FDR, smiling derisively, said ‘has my entire
approval’. 61 Six of the nine Supreme Court justices were over the age of seventy and if they did not
55 Jackson, op. cit., p. 176 et seq.; Rodell, op. cit., p. 214, 235, 242, 243; McCloskey, American Supreme Court, p. 112.
56 Jackson, op. cit., p. 178.
57 Rodell, op. cit., p. 243; Chronicle of America, p. 674.
58 See text accompanying n. 20 above. Jackson too draws a comparison with Britain where he writes: ‘Property interests … had come to
regard the Supreme Court as their own House of Lords and to believe they had a moral right to control its sheltering veto’, op. cit., p. 182.
59 The Presidential Message is printed in Jackson, op. cit., p. 328-337; the verbatim text of the bill relating to the subject of Court-packing,
which will be discussed below, can be found in Dowling and Gunther, Constitutional Law. Cases and Materials, 7th edn., 1965, p. 265.
60 See the Presidential Message.
61 Ibid., Jackson, op. cit., p. 334. On 1 March 1937 Congress passed the bill, which became the Supreme Court Retirement Act.
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