Contents - Constitutional Court of Georgia

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74 Lucas Prakke pack their bags, Roosevelt would be able to expand the Court in one fell swoop to 15: a swamping creation! Everyone was agreed that this was essentially what it had all been about from the start, and that was the very reason the proposal went down badly, even among supporters of FDR. People disapproved of the fact that a frontal attack on the Supreme Court had been concealed in a high-sounding proposal for reorganization of the judiciary which, moreover, was based on dubious assumptions. For example, Chief Justice Hughes announced immediately that the Supreme Court was not overloaded and that it did not have a backlog of cases. Many also doubted the constitutionality of the proposed measure: an attempt to call the Supreme Court to order could only be undertaken by revising the Constitution. A very radical bill to this end was introduced on 15 February by Democratic Senator Burton K. Wheeler: a federal law declared invalid by the Supreme Court would regain its force of law if it were once more passed by both houses of the Congress by a twothirds majority. An amendment to the Constitution launched on 11 March took a different tack by stipulating that in the future a two-thirds majority would be required for court decisions holding laws unconstitutional. 62 While FDR’s proposal was already going down the wrong way with many of his supporters, his opponents naturally had no good word for it at all. They spoke indignantly of a ‘Courtpacking plan’, and that is how it went down in history. 63 * * * It was called a Court-packing plan, and a Court-packing plan it was, too. The disingenuous way in which the proposal was presented had been a blunder in view of Roosevelt’s reputation as a straight-talking president. In a Fireside Chat on 9 March he attempted to make good the mistake. He described the American system of government as a ‘three-horse team’ and went on: 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. In the rest of his chat the President did not mince his words. He did not even attempt to deny that adding justices to the Supreme Court had been the chief motive for the proposed plan of reorganizing the federal judiciary. I quote a number of salient passages: Since the rise of the modern movement for social and economic progress through legislation, the Court has more and more often and more and more boldly asserted a power to veto laws passed by the Congress and State Legislatures in complete disregard of this original limitation [viz. the presumption of validity of laws]. In the last four years the sound rule of giving statutes the benefit of all reasonable doubt has been cast aside. The Court has been acting not as a judicial body, but as a policy-making body … 62 These two proposed amendments of the Constitution are printed in Jackson, op. cit., p. 352-353. 63 The verb ‘to pack’ has several definitions, one of which is to fill (a legislative body, committee, etc.) with one’s own supporters.
Swamping the Lords, Packing the Court, Sacking the King. Three Constitutional Crises That is not only my accusation. It is the accusation of most distinguished Justices of the present Supreme Court … (quotes follow) The Court in addition to the proper use of its judicial functions has improperly set itself up as a third House of the Congress – a superlegislature as one of the Justices has called it – reading into the Constitution words and implications which are not there, and which were never intended to be there. We have, therefore, reached the point as a Nation where we must take action to save the Constitution from the Court and the Court from itself … We want a Supreme Court which will do justice under the Constitution, not over it. In our Courts we want a government of laws and not of men. 64 Tough talk! In the continuation of his speech the president defended himself against the accusation of Court-packing, pointed out that in the whole of his first term in office he had not been able to appoint a single justice to the Supreme Court – with the result that no fresh blood had been introduced, and he let it be known that he did not expect any good to come from constitutional amendments. The amendment procedure was so difficult, and the differences of opinion on what should be done so great, that it would take years and years before agreement was reached on the text of a proposal, let alone before it had been passed by Congress and a sufficient number of states. * * * A day after this Fireside Chat, the Senate Judiciary Committee started hearings on the president’s plans. Resistance to them was and continued to be great, and was led nota bene by Democratic Senator Wheeler, who had himself submitted an even more radical proposal, albeit a proposal to amend the Constitution. On 14 June 1937 the Judiciary Committee adopted by a majority of one vote a withering report rejecting the Court-packing plan in unprecedentedly scathing terms: We recommend the rejection of this bill as a needless, futile, and utterly dangerous abandonment of constitutional principle. It was presented to the Congress in a most intricate form and for reasons that obscured its real purpose … It stands now before the country, acknowledged by its proponents as a plan to force judicial interpretation of the Constitution, a proposal that violates every sacred tradition of American democracy … 64 The speech is printed in Jackson, op. cit., p. 340-351. 75
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