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What alternative judicial reforms were proposed during the 1937 Court-packing crisis, and how might revisiting these lesser-known proposals inform today’s debate on Supreme Court reform?

Image courtesy of interviewee. November 7, 2024

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In early 1937, President Franklin D. Roosevelt expressed frustration with the Supreme Court, which he viewed as obstructing his New Deal policies. After his significant election victory in 1936, he delivered a message to Congress advocating for reforms to ensure that the legislative and judicial branches aligned with the needs of modern democracy. Roosevelt proposed a plan to "pack" the court by appointing six new justices, expanding its size from nine to fifteen, aiming to secure a majority that would support his policies.

However, this plan faced strong opposition, with critics arguing that it would undermine judicial independence and violate the principle of separation of powers. They contended that altering the court's makeup for political purposes could set a dangerous precedent, threatening the stability of the Constitution and the protection of civil liberties. Critics within Congress proposed alternative solutions, such as constitutional amendments to limit judicial tenure or establish methods for Congress to override Supreme Court decisions.

While the idea of court-packing was ultimately never implemented, it ignited a significant national debate about the balance of power between branches of government, the independence of the judiciary, and the appropriate methods for constitutional reform. Although Roosevelt aimed to modernize the court, critics highlighted the importance of upholding traditional checks and balances within the government structure. The aftermath of this episode led to notable changes in the composition of the court through retirements, securing a liberal majority that aligned more closely with Roosevelt’s vision, albeit without formal changes to the court’s structure as he had intended.

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Here are five key points from the video regarding President Roosevelt's interactions with the Supreme Court in the 1930s:

1. **Conflict with the Supreme Court**: President Roosevelt expressed discontent with the Supreme Court after it began invalidating several key components of his New Deal program, which he viewed as essential for economic recovery and reform. He believed the judicial branch was impeding progress and sought ways to align it with the other branches of government.

2. **Court Packing Proposal**: In an effort to gain a supportive judiciary, Roosevelt proposed a "court-packing" plan that would allow him to appoint six additional justices to the Supreme Court. This was intended to secure a reliable majority that would back his New Deal policies.

3. **Criticism and Opposition**: The court-packing plan faced significant opposition, with critics arguing it threatened judicial independence and the separation of powers. Concerns were raised that allowing the president to appoint justices would undermine the constitutional framework and potentially lead to the erosion of civil liberties.

4. **Alternative Proposals**: Various proposals emerged from Congress as responses to the "court problem," including measures to limit the tenure of justices or impose mandatory retirement ages. However, many of these proposals failed to garner widespread support and were viewed as potentially compromising the independence of the judiciary.

5. **Legitimacy of Amendments**: Some commentators and legislators opposed Roosevelt's claim that amending the Constitution was too slow, arguing that past amendments had been ratified quickly. They suggested that his court-packing strategy demonstrated a lack of faith in the democratic process and invited fears that it could lead to increased partisan manipulation of the judiciary.

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Here are some key quotes derived from the video regarding President Roosevelt's conflict with the Supreme Court and his court-packing plan:

1. **Roosevelt's Criticism of the Court:**
- "President Roosevelt had been unhappy with the Supreme Court since the spring of 1935, when the justices began invalidating one after another measure of his New Deal program."
- "Two months later, president Roosevelt complained again that the Supreme Court stymied the New Deal at nearly every turn."

2. **Roosevelt's Metaphor of Government:**
- "The three horse team of the American system of government will pull together...But if one horse lies down...the field will not be plowed. ...two of the horses are pulling in unison today, the third is not."

3. **Proposal of the Court Packing Plan:**
- "Under that plan, the president would've had the opportunity to appoint six new justices to the court immediately."

4. **Criticism of the Court Packing Plan:**
- "Critics raised a variety of objections...the bill was an attack on judicial independence and on the separation of powers."
- "If the President is once established, if one man and another one party...where do we end?"

5. **Concerns About Judicial Independence:**
- "Those who argued that the President was trying to subordinate the judiciary to the will of the other branches of government."

6. **Critique of Proposed Amendments:**
- "The president's proposal was an attempt to amend the Constitution without going to the American people through the mechanism for amendment that was set forth in Article five of the Constitution."

7. **Defensive Observations Regarding Judicial Independence:**
- "A judge's term in office be sufficient to fortify him against all the insidious influences of self-interest."
- "Little by little, he said New facts become blurred through old glasses fitted...for the needs of another generation."

8. **Roosevelt’s Arguments for Court Reform:**
- "Roosevelt contended that the court needed new and younger blood."

9. **Opposition to Court Packing:**
- "Some claim that the president's attempt to do an in run around the procedures for amendment showed a lack of faith in the Democratic process."

10. **Constitutional Concerns:**
- "Having seen sadism incarnate in members of congressional committees...I respectfully beg to be excused from giving sovereignty to Congress."

These quotes illustrate the tension between President Roosevelt and the Supreme Court during the 1930s, the rationale behind Roosevelt's court packing plan, and the response from both supporters and critics of the initiative.

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President Roosevelt had been unhappy

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with the Supreme Court since, the spring of 1935,

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when the justices began invalidating one

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after another measure of his New Deal program.

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And so after winning a landslide victory in the general

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election in 1936, he decided that he needed

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to take some action to remove the obstacles to recovery

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and reform that he saw as being raised

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by the court's decisions.

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So in his annual message to Congress, delivered,

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on January 6th, 1937, president Roosevelt declared

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that it was not to be assumed

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that there will be prolonged failure to bring legislative

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and judicial action into closer harmony means must be found.

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He insisted to adapt our legal forms

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and our judicial interpretation to the actual present needs

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of the largest progressive democracy in the modern world.

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After expressing, confidence that the executive

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and legislative branches

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of the national government would continue the task

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of making democracy succeed, the President remarked

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that the judicial branch also is asked by the people

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to do its part in making democracy successful.

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Two months later, president Roosevelt complained again

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that the Supreme Court stymied the New Deal

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at nearly every turn.

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He said that there was no definite assurance

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that the three horse team of the American system

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of government will pull together those three horses

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to which he referred were the three branches

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of the federal government.

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The Congress, the executive,

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and the courts, Roosevelt explained

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that if three well-matched horses are put to the task

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of plowing up a field where the going is heavy

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and the team of three pull as one,

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then the field will be plowed.

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But if one horse lies down and the traces

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or plunges off in another direction,

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the field will not be plowed.

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And as things stood, he said two

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of the horses are pulling in unison today, the third is not.

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And so after considering a series of options, the president

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and his attorney General settled on what came

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to be called the court backing plan.

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And under that plan, the president would've had the

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opportunity to appoint six new justices

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to the court immediately increasing the number

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of justices from nine to 15.

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And they settled on this number,

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because it was the minimum number of additional justices

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that Roosevelt believed necessary

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to secure a dependable court majority

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that would be supportive of the New Deal.

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Critics raised a, a, a variety of objections,

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to the President's proposal,

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and, the, the opponents

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of the plan ultimately succeeded.

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In defeating it. The most common complaint was

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that the bill was an attack on judicial independence

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and on the separation of powers, critics argued

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that its purpose, which was frankly

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to place justices on the court

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who would interpret the Constitution in a manner

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that was different,

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from the manner in which it had been interpreted

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by the incumbent, majority, was improper.

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Uh, and the president, they argued, was trying

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to subordinate the judiciary to the will

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of the other branches of government.

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So historian James Truslow Adams, for example, worried that

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as he put it, if the winning party can not only carry out

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its political, policies,

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but also alter the Constitution at will

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by packing the court, then political campaigns may become

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matters of life and death.

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Who can tell? He asked

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what man may be swung unexpectedly into power 10 years,

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hence, or sooner if President Roosevelt could, as he put it,

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bring the Supreme Court to heal by packing it,

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then some other man can do the same.

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If the President is once established, if one man

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and another one party

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and another are to be able to ensure the passage

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of all legislation by simply adding members

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to the bench, where do we end?

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It would mean that in electing a president in Congress,

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we would also be electing a Supreme Court, which in regard

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to its duty of passing on the constitutionality

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of legislation, would be become merely another House of

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Congress acting as a rubber stamp not to pass on,

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but to sign any acts passed by the party in power.

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What then Adams asked becomes of the Constitution

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and the Bill of Rights guaranteeing our personal liberties.

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So critics of court packing argued

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that the President's three horse metaphor was simply inapt.

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Uh, the tensions between the branches of government

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and the checks on one another

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that they've been granted were fundamental

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to the architecture of our constitutional democracy.

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The president's proposal they argued, was an attempt

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to amend the Constitution without going

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to the American people through the mechanism for amendment

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that was set forth in Article five of the Constitution.

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If the people wanted to amend the Constitution

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to provide the federal government

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with greater regulatory power, article five

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of the Constitution prescribed the proper method.

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If the justice had been,

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justices had been misinterpreting the constitution either

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willfully or corruptly,

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or through a spirit of malicious intent,

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the appropriate remedy, there was impeachment,

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not enlargement of the court.

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And so commentators who shared the President's concern over

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some of the court's recent decisions

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and were openly critical of those decisions,

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still maintained that there was a right way

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and a wrong way to address those concerns.

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And they insisted that court packing was,

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as they put it the wrong way, members

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of Congress introduced a variety of different, proposals

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to amend the Constitution to address what they perceived

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as the court problem.

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Uh, many of those would've expanded federal regulatory power

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or relaxed the restraints

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that were imposed on economic regulation,

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by the due process clauses of the Constitution.

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A number of others were designed to make the process

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of constitutional amendment easier.

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Uh, but many of the pro other proposed amendments

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were directed toward the court.

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Uh, one idea, would've permitted Supreme Court decisions

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to be overturned by a two-thirds vote of both houses

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of Congress after there had been an intervening election

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for the House of Representatives,

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which happens every two years.

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The analogy here was to the congressional

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Override of a presidential veto of a bill,

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which Congress can do by two thirds of vote of both houses.

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Uh, the principal proponent

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of this particular proposal was Burton Wheeler,

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the Montana Democrat who led the Senate opposition

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to the court packing plan,

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and who had supported such an override proposal when he was

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Robert Lafa running Mate on the Progressive Party ticket in

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the 1924 election.

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Wheeler's proposal did find some support in the academic

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and the periodical literature,

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but it also encountered significant opposition.

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Uh, for example, Columbia's law school Dean opposed it

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because, as he said, it would give Congress power

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to amend the Constitution by a simple two-thirds vote,

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and that would happen possibly as another,

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observed at the expense of civil liberties and civil rights.

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Uh, another commentator derided the proposal

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as one under which a bad statute shall become good

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by repetition, which a Columbia law professor denounced

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as a childish approach to the problem.

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And others criticized the proposal as one

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that would take judicial power from the court

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and vest it in Congress.

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As one Harvard law professor remarked,

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it was not the function of Congress to decide cases

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between private litigants.

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Another law professor claimed

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that their proposal would be like allowing the members

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of a baseball team to overrule a call made by the umpire.

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Uh, some critics worry

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that Wheeler's proposal confused issues of policy,

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with those of constitutionality

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and that a congressional override might not,

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necessarily be the result

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of serious constitutional deliberation.

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And others pointed out that,

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piecemeal constitutional amendment

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by overruling particular decisions was not a sound way

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to preserve a stable and orderly constitutional system

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for these and perhaps other reasons that

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that proposal found little support in Congress.

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President Roosevelt had contended that the court needed new

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and younger blood.

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Uh, so the cases involving social

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and economic problems would be decided by, as he put it,

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younger men who have had personal experience

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and contact with modern facts

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and circumstances under which average men have

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to live and work.

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The President insisted that a lowered mental

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or physical vigor leads men to avoid an examination

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of complicated and changed conditions.

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Little by little, he said New facts become blurred

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through old glasses fitted, as it were for the needs

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of another generation.

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And older men, assuming that the scene is the same

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as it was in the past, ceased to explore

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or inquire into the present or the future.

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Thus, he argued it was necessary

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to save our national constitution from hardening

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of the judicial arteries.

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Members of Congress introduced numerous proposals

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to limit the tenure of justices to a specified period,

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typically between nine and 18 years.

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Uh, those proposals didn't receive much attention in

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Congress as it turned out,

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but some critics contended that the tenure

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during good behavior that's conferred

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by the Constitution was as one, put it necessary in order

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to attract competent lawyers to the bench

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and to give incumbents that independence,

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which will ensure fair

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and impartial performance of judicial duties.

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Another commentator insisted that a judge's term in office

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be sufficient to fortify him against all the insidious

215
00:09:20.265 --> 00:09:21.855
influences of self-interest,

216
00:09:22.045 --> 00:09:24.495
whether secretly operating in his own mind

217
00:09:24.795 --> 00:09:26.735
or being exerted upon him by others.

218
00:09:27.515 --> 00:09:30.485
Another reminded is readers of Lord Bryce's observation

219
00:09:30.485 --> 00:09:33.685
that short judicial terms, as Bryce put it,

220
00:09:34.285 --> 00:09:37.405
sap the conscience of the judge for they oblige him

221
00:09:37.425 --> 00:09:39.805
to remember and keep on good terms with those

222
00:09:39.805 --> 00:09:41.005
who have made him what he is

223
00:09:41.385 --> 00:09:43.485
and in whose hands his fortunes lie.

224
00:09:43.915 --> 00:09:47.325
They induce timidity, they discourage independence.

225
00:09:47.855 --> 00:09:51.565
Bryce worried about ways in which sinister influences can

226
00:09:51.565 --> 00:09:52.725
play on a judge's mind

227
00:09:53.305 --> 00:09:55.885
and impair that competence in his impartiality,

228
00:09:56.175 --> 00:09:59.485
which is almost as necessary as impartiality itself.

229
00:10:00.475 --> 00:10:03.215
Judges, in other words, when they were deciding cases,

230
00:10:03.245 --> 00:10:05.335
shouldn't be thinking about what they would be doing

231
00:10:05.355 --> 00:10:08.735
for a living after their judicial term concluded,

232
00:10:09.645 --> 00:10:12.375
they needed to be kept independent of all pressure.

233
00:10:12.875 --> 00:10:14.935
So critics contended that legit,

234
00:10:14.935 --> 00:10:17.575
limited judicial terms couldn't perform

235
00:10:17.645 --> 00:10:18.895
that important function.

236
00:10:20.035 --> 00:10:21.295
The more common proposal

237
00:10:21.315 --> 00:10:23.775
for limiting judicial tenure was a constitutional amendment

238
00:10:24.195 --> 00:10:27.295
to impose a mandatory retirement age upon federal

239
00:10:27.415 --> 00:10:28.655
judges and justices.

240
00:10:29.515 --> 00:10:32.535
Uh, most of these joint resolutions proposed 75

241
00:10:32.835 --> 00:10:34.255
as the appropriate age.

242
00:10:34.635 --> 00:10:37.575
Though a few proposed younger ages such as 70

243
00:10:38.195 --> 00:10:39.975
and one would've raised the age to 80,

244
00:10:41.005 --> 00:10:43.255
such proposals found considerable support

245
00:10:43.785 --> 00:10:45.575
among opponents of court packing.

246
00:10:45.675 --> 00:10:48.775
And in fact, a mandatory retirement amendment was the

247
00:10:48.775 --> 00:10:50.935
measure that polled best with the general public,

248
00:10:51.865 --> 00:10:53.325
but many liberals opposed.

249
00:10:53.475 --> 00:10:54.965
Such an approach contending

250
00:10:55.155 --> 00:10:57.165
that many judges were perfectly capable

251
00:10:57.265 --> 00:10:59.645
of performing their duties beyond the age of 70.

252
00:11:00.335 --> 00:11:02.425
Justice Holmes had served with distinction

253
00:11:02.425 --> 00:11:03.985
beyond his 90th birthday,

254
00:11:04.525 --> 00:11:06.985
and at the time, justice Brandeis was continuing

255
00:11:06.985 --> 00:11:08.025
to serve with distinction.

256
00:11:08.365 --> 00:11:12.795
At the age of 80, president Roosevelt rejected proposals

257
00:11:12.795 --> 00:11:15.715
to limit judicial tenure or to impose mandatory retirement.

258
00:11:16.215 --> 00:11:18.355
And so they got no traction in Congress.

259
00:11:19.175 --> 00:11:22.075
But the proposal that did gain traction was a bill

260
00:11:22.075 --> 00:11:25.115
that would allow justices to retire with the assurance

261
00:11:25.145 --> 00:11:27.075
that their pensions would not be reduced.

262
00:11:28.465 --> 00:11:30.195
Both Justice Willis Vandevanter

263
00:11:30.195 --> 00:11:32.035
and Justice George Sutherland were rumored

264
00:11:32.035 --> 00:11:33.195
to be anxious to retire.

265
00:11:33.735 --> 00:11:35.475
But under the judicial pension system

266
00:11:35.475 --> 00:11:37.715
that was then in place, justices

267
00:11:37.715 --> 00:11:40.195
who had resigned from the court were not protected against

268
00:11:40.595 --> 00:11:41.875
reductions in their stipends.

269
00:11:42.725 --> 00:11:45.545
In fact, justice Holmes had resigned in 1932,

270
00:11:46.165 --> 00:11:47.265
and in the following year,

271
00:11:47.585 --> 00:11:49.225
Congress had cut his pension in half

272
00:11:49.695 --> 00:11:51.945
with the Economy Act in 1933.

273
00:11:53.315 --> 00:11:54.735
In January of 1937,

274
00:11:54.745 --> 00:11:57.735
house Judiciary Committee Chairman Hatton Sumners introduced

275
00:11:57.895 --> 00:12:00.735
a bill permitting justices to retire at full salary.

276
00:12:01.555 --> 00:12:04.415
Uh, after President Roosevelt introduced his court packing

277
00:12:04.415 --> 00:12:07.015
bill on February 5th, that,

278
00:12:07.015 --> 00:12:08.975
retirement bill was quickly passed by both houses

279
00:12:08.995 --> 00:12:11.495
of Congress and was signed into law

280
00:12:11.575 --> 00:12:13.095
by the president by March 1st.

281
00:12:14.175 --> 00:12:17.385
Justice Vanvan retired on May 18th,

282
00:12:17.405 --> 00:12:20.265
and Justice Sutherland retired the following January saying

283
00:12:20.265 --> 00:12:21.465
in fact that he would've done

284
00:12:21.465 --> 00:12:24.585
so earlier if the court packing plan had not been pending.

285
00:12:25.195 --> 00:12:26.425
Those two retirements

286
00:12:26.645 --> 00:12:28.825
and their replacements with justices Black

287
00:12:28.885 --> 00:12:32.225
and Reed gave President Roosevelt a solid liberal

288
00:12:32.705 --> 00:12:34.105
majority on the Supreme Court.

289
00:12:34.105 --> 00:12:37.345
President Roosevelt, was opposed

290
00:12:37.445 --> 00:12:40.065
to addressing the court issue through any form

291
00:12:40.065 --> 00:12:42.265
of constitutional amendment,

292
00:12:42.265 --> 00:12:46.625
because he believed that its framing and passage by Congress

293
00:12:46.925 --> 00:12:51.265
and ratification by the States would take too long,

294
00:12:51.365 --> 00:12:52.945
and could be too easily blocked

295
00:12:53.005 --> 00:12:55.585
by conservative interests in the legislatures of states

296
00:12:55.615 --> 00:12:58.705
that contained only a fraction of the nation's population.

297
00:12:59.845 --> 00:13:02.505
So, for example, the President argued,

298
00:13:02.505 --> 00:13:06.225
that states containing only 5% of the voting population

299
00:13:06.755 --> 00:13:11.505
could block ratification, even though 35 states with 95%

300
00:13:11.505 --> 00:13:14.065
of the voting population were in favor of it.

301
00:13:14.685 --> 00:13:16.065
Uh, and, as well,

302
00:13:16.065 --> 00:13:18.665
that powerful economic interests would pretend

303
00:13:18.665 --> 00:13:20.105
to favor amend an amendment

304
00:13:20.365 --> 00:13:22.865
and then would sabotage any constructive

305
00:13:22.865 --> 00:13:24.025
amendment that was proposed.

306
00:13:24.685 --> 00:13:27.225
And so he contended packing the court

307
00:13:27.365 --> 00:13:30.585
by statute was the only viable solution.

308
00:13:31.325 --> 00:13:33.225
Now, opponents of court packing, in fact,

309
00:13:33.235 --> 00:13:35.105
vigorously contested those claims.

310
00:13:35.845 --> 00:13:37.385
Uh, they rejected the contention

311
00:13:37.385 --> 00:13:39.305
that the amendment process is too slow

312
00:13:39.325 --> 00:13:40.905
and cumbersome, agreeing

313
00:13:40.905 --> 00:13:43.185
with Texas Democratic Senator Tom Connelley,

314
00:13:43.185 --> 00:13:46.265
that if the people really want a constitutional amendment

315
00:13:46.565 --> 00:13:49.585
and are overwhelmingly for it, it can be done speedily.

316
00:13:49.615 --> 00:13:51.585
That was particularly the case if Congress were

317
00:13:51.585 --> 00:13:54.705
to choose state conventions as the means of ratification,

318
00:13:55.245 --> 00:13:58.145
as had been done effectively, with the 21st Amendment,

319
00:13:58.745 --> 00:14:01.025
repealing prohibition in 19, 33.

320
00:14:02.005 --> 00:14:03.665
And if the President who was

321
00:14:04.005 --> 00:14:06.665
as some put it very strong politically,

322
00:14:06.665 --> 00:14:08.225
would put his great prestige

323
00:14:08.225 --> 00:14:11.825
and influence behind it, commentators repeatedly noted

324
00:14:11.825 --> 00:14:14.185
that many amendments, including the two most recent

325
00:14:14.185 --> 00:14:17.425
amendments, have been ratified in less than a year from the

326
00:14:17.425 --> 00:14:18.785
time that they were submitted to the States,

327
00:14:19.285 --> 00:14:21.505
and that many others had been ratified in

328
00:14:21.585 --> 00:14:22.745
fewer than 15 months.

329
00:14:23.525 --> 00:14:26.265
Uh, some claim that the president's attempt to do an in run

330
00:14:26.265 --> 00:14:29.065
around the procedures for amendment specified in the

331
00:14:29.265 --> 00:14:30.985
Constitution showed a lack

332
00:14:30.985 --> 00:14:32.545
of faith in the Democratic process.

333
00:14:33.725 --> 00:14:36.785
Uh, others argued that the scenario under which 13 states

334
00:14:36.785 --> 00:14:38.985
of small population would defeat an amendment

335
00:14:39.005 --> 00:14:40.025
was fantastical.

336
00:14:40.845 --> 00:14:42.745
As one Chicago lawyer put it, the states

337
00:14:42.765 --> 00:14:45.465
of small population do not have common interests.

338
00:14:45.885 --> 00:14:48.745
Uh, there was this no probability that they would unite

339
00:14:48.745 --> 00:14:49.745
to defeat an amendment.

340
00:14:50.795 --> 00:14:52.605
Columbia's law School Dean said he could think

341
00:14:52.605 --> 00:14:55.685
of no proposed amendment in which 95% of the people were

342
00:14:55.705 --> 00:14:58.125
for it, and 5% of the people blocked it.

343
00:14:59.105 --> 00:15:01.725
He and others marveled at the suggestion that the president

344
00:15:01.725 --> 00:15:02.805
who had won 46

345
00:15:02.825 --> 00:15:05.965
of the 48 states in the electoral college in the preceding

346
00:15:05.965 --> 00:15:07.565
general election,

347
00:15:07.565 --> 00:15:09.725
could have serious concerns about ratification

348
00:15:09.805 --> 00:15:11.285
of an amendment that he proposed.

349
00:15:11.955 --> 00:15:13.805
Raymond Moley, a journalist

350
00:15:13.805 --> 00:15:16.405
who had formerly worked in the White House, derd

351
00:15:16.405 --> 00:15:17.965
that suggestion as like one

352
00:15:17.965 --> 00:15:20.765
of those mathematical propositions in which you bring out

353
00:15:20.765 --> 00:15:23.485
that the Omaha High School could have beaten Notre Dame

354
00:15:23.825 --> 00:15:24.885
and did, in fact,

355
00:15:25.185 --> 00:15:28.965
and that is shown from the statistics, the fact he argued is

356
00:15:28.965 --> 00:15:31.725
that these 13 states never went together in any attempt

357
00:15:31.725 --> 00:15:33.565
to put through a constitutional amendment,

358
00:15:33.865 --> 00:15:35.165
and they probably will not.

359
00:15:35.505 --> 00:15:38.005
And to assert that these 13 small states were off

360
00:15:38.005 --> 00:15:41.045
of this kind of handicap, I think is to resort to the kind

361
00:15:41.065 --> 00:15:43.645
of mathematical puzzles that are indulged in

362
00:15:43.645 --> 00:15:46.805
by sports writers when they haven't anything else to do.

363
00:15:47.865 --> 00:15:50.765
Now, obviously, the political landscape today is different.

364
00:15:51.305 --> 00:15:54.325
Uh, neither of the two major political parties is

365
00:15:54.385 --> 00:15:57.285
as dominant as the Democrats were in the mid 1930s.

366
00:15:57.905 --> 00:15:59.245
Uh, and many of the issues that come

367
00:15:59.245 --> 00:16:01.245
before the court today are ones on which citizens have

368
00:16:01.245 --> 00:16:04.005
perhaps even stronger in more deeply divided views.

369
00:16:04.885 --> 00:16:07.985
Uh, there are recent polls showing substantial majorities,

370
00:16:08.405 --> 00:16:09.945
in favor of term limits

371
00:16:10.125 --> 00:16:12.505
or compulsory retirement for justices.

372
00:16:13.045 --> 00:16:15.825
Uh, but whether those proposals could navigate the amendment

373
00:16:15.825 --> 00:16:19.025
process under present political circumstances,

374
00:16:19.025 --> 00:16:21.145
is an open question on which there's room for doubt.

375
00:16:21.445 --> 00:16:23.745
It may depend on how the amendment is formulated.

376
00:16:24.165 --> 00:16:26.825
Uh, for example, does it apply only to justices appointed

377
00:16:26.955 --> 00:16:28.745
after the amendment is ratified?

378
00:16:29.925 --> 00:16:31.225
But in any event, it may be

379
00:16:31.225 --> 00:16:32.745
that President Roosevelt's arguments

380
00:16:32.745 --> 00:16:36.025
concerning the difficulty of amending the Constitution are

381
00:16:36.025 --> 00:16:38.105
more powerful today than they were when he made

382
00:16:38.105 --> 00:16:39.225
them back in the 1930s.

383
00:16:39.315 --> 00:16:42.185
There were, there are some, types of proposals

384
00:16:42.425 --> 00:16:44.585
that I didn't raise in my earlier question,

385
00:16:44.585 --> 00:16:47.025
and so I should probably fill out the story by,

386
00:16:47.085 --> 00:16:48.225
referring to them here.

387
00:16:49.085 --> 00:16:51.105
Um, first, members

388
00:16:51.105 --> 00:16:54.425
of Congress introduced several joint resolutions to require

389
00:16:54.425 --> 00:16:57.545
that the court provide advisory opinions on the

390
00:16:57.865 --> 00:17:00.825
constitutionality of federal legislation at the request

391
00:17:00.985 --> 00:17:02.145
of president or Congress.

392
00:17:02.145 --> 00:17:03.945
Federal courts, establ,

393
00:17:03.945 --> 00:17:05.465
it was established early in the Republic,

394
00:17:05.485 --> 00:17:08.465
do not provide such advisory opinions in some of our states.

395
00:17:08.535 --> 00:17:09.945
They do. Uh,

396
00:17:10.365 --> 00:17:12.345
and so it was proposed that the federal,

397
00:17:12.345 --> 00:17:15.505
Supreme Court provide, advisory opinions such

398
00:17:15.505 --> 00:17:18.905
as some state courts do, those proposals received some,

399
00:17:19.285 --> 00:17:21.905
support from opponents of court packing.

400
00:17:22.245 --> 00:17:25.905
Uh, but, often with the qualifying observation

401
00:17:25.935 --> 00:17:28.705
that these advisory opinions would be of limited utility

402
00:17:29.135 --> 00:17:32.345
because 'cause they could address only the facial validity

403
00:17:32.345 --> 00:17:35.305
of legislation and not its validity as applied

404
00:17:35.305 --> 00:17:38.225
to particular factual circumstances.

405
00:17:39.045 --> 00:17:42.105
And that was a matter of considerable concern, especially

406
00:17:42.105 --> 00:17:44.385
with respect to the reach of the federal commerce power

407
00:17:44.595 --> 00:17:47.425
under which most federal regulation was conducted.

408
00:17:48.445 --> 00:17:51.485
Uh, others worried that the justices, if they were asked

409
00:17:51.485 --> 00:17:54.485
to offer advisory opinions, wouldn't have the advantages

410
00:17:54.485 --> 00:17:57.845
of the research and arguments of counsel that were produced

411
00:17:57.865 --> 00:17:59.405
by adversarial litigation.

412
00:18:00.105 --> 00:18:02.245
Uh, nor would they have the benefit of the decisions

413
00:18:02.245 --> 00:18:04.805
of lower courts before which these cases have been heard

414
00:18:04.825 --> 00:18:07.565
or professional commentary on the decisions

415
00:18:07.665 --> 00:18:08.765
of those lower courts.

416
00:18:09.825 --> 00:18:11.925
Uh, critics worried as well that the possibility

417
00:18:11.925 --> 00:18:15.045
of requiring advisory opinions would impose additional

418
00:18:15.045 --> 00:18:16.725
burdens on the court,

419
00:18:16.725 --> 00:18:18.805
which in turn would reduce the consideration

420
00:18:18.805 --> 00:18:20.965
that they could give to other matters that was on,

421
00:18:21.115 --> 00:18:24.685
that were on the court's docket, that some commentators,

422
00:18:24.885 --> 00:18:27.045
observed that most members of Congress were lawyers

423
00:18:27.185 --> 00:18:28.405
and should be perfectly capable

424
00:18:28.825 --> 00:18:30.565
of assessing the constitutionality

425
00:18:30.585 --> 00:18:32.805
of a proposed bill on their own,

426
00:18:32.805 --> 00:18:35.245
and that the court's past decisions,

427
00:18:35.485 --> 00:18:37.405
provided adequate guidance for the exercise

428
00:18:37.825 --> 00:18:39.445
of their judgment in that role.

429
00:18:39.705 --> 00:18:41.805
In addition, some argued if members

430
00:18:41.805 --> 00:18:45.525
of Congress could rely on the court to be the bad guy,

431
00:18:45.525 --> 00:18:48.405
they might be tempted to propose irresponsible measures

432
00:18:48.405 --> 00:18:50.045
of dubious constitutionality

433
00:18:50.585 --> 00:18:52.205
and then explain to their constituents

434
00:18:52.235 --> 00:18:54.805
that they had favored a particular proposal,

435
00:18:54.805 --> 00:18:56.725
but that the court just wouldn't let them enact it.

436
00:18:57.505 --> 00:19:00.765
Um, another, a type of proposal that a number of members

437
00:19:01.025 --> 00:19:03.925
of Congress introduced, were, were measures

438
00:19:03.925 --> 00:19:07.005
that would've changed the court's voting rules,

439
00:19:07.105 --> 00:19:11.965
to require a super majority of six or seven, or eight,

440
00:19:11.985 --> 00:19:14.525
or even all nine of the justices in order

441
00:19:14.525 --> 00:19:16.685
to invalidate federal or state legislation.

442
00:19:16.955 --> 00:19:19.645
Legislators believe that such a change could be accomplished

443
00:19:19.705 --> 00:19:22.685
by statute, but the weight of opinion seems to have held

444
00:19:22.685 --> 00:19:24.845
that such a change to the court's voting rules could be

445
00:19:24.845 --> 00:19:27.445
accomplished only by a constitutional amendment.

446
00:19:27.945 --> 00:19:29.805
And so most of the proposals,

447
00:19:29.855 --> 00:19:31.485
along these lines took that form.

448
00:19:32.665 --> 00:19:34.485
Uh, there were a number of commentators

449
00:19:34.585 --> 00:19:36.525
who opposed such a measure,

450
00:19:36.525 --> 00:19:38.605
because as they argued, it would give a minority

451
00:19:38.625 --> 00:19:40.125
of justices the power

452
00:19:40.385 --> 00:19:43.765
to prevent the court from declaring an act unconstitutional.

453
00:19:44.555 --> 00:19:47.125
They argued that this would first violate the principle

454
00:19:47.125 --> 00:19:48.125
of majority rule,

455
00:19:48.905 --> 00:19:51.165
and that it could result in the denial of justice

456
00:19:51.305 --> 00:19:53.205
to individual litigants,

457
00:19:53.205 --> 00:19:54.805
who might be denied civil rights

458
00:19:54.805 --> 00:19:58.125
or even sent to prison under a law, that a majority

459
00:19:58.125 --> 00:20:00.365
of the justices believed was unconstitutional.

460
00:20:01.185 --> 00:20:04.285
The state of Ohio had adopted a super majority voting

461
00:20:04.285 --> 00:20:06.325
requirement, in its,

462
00:20:06.385 --> 00:20:08.445
on its Supreme Court in, 1912.

463
00:20:09.145 --> 00:20:11.645
Uh, and several observers, including at least some

464
00:20:11.645 --> 00:20:14.765
of the Ohio judges themselves, thought that the results

465
00:20:14.785 --> 00:20:16.645
of that had been unsatisfactory

466
00:20:17.105 --> 00:20:18.885
and indeed, Ohio later repealed

467
00:20:18.885 --> 00:20:20.365
that provision of its constitution.

468
00:20:21.105 --> 00:20:23.445
Uh, finally, there were, a number of proposals

469
00:20:23.445 --> 00:20:26.125
to deprive the court of its power to declare acts

470
00:20:26.125 --> 00:20:29.685
of Congress unconstitutional in cases arising under the

471
00:20:29.685 --> 00:20:31.125
court's appellate jurisdiction,

472
00:20:31.135 --> 00:20:33.005
where its hearing appeals from other courts.

473
00:20:33.665 --> 00:20:35.445
Uh, such proposals were supported

474
00:20:35.445 --> 00:20:37.605
by some commentators in the labor movement

475
00:20:37.905 --> 00:20:39.285
and on the political left,

476
00:20:39.745 --> 00:20:41.925
but most observers appear to have opposed them.

477
00:20:42.385 --> 00:20:44.125
Uh, the Roosevelt administration thought

478
00:20:44.125 --> 00:20:46.045
that these proposals wouldn't fix the problem

479
00:20:46.045 --> 00:20:48.845
because lower federal courts were still dominated

480
00:20:48.905 --> 00:20:51.245
by Republican judges who were hostile to the New Deal.

481
00:20:51.985 --> 00:20:53.725
Uh, others worried that,

482
00:20:53.725 --> 00:20:55.845
different federal circuit courts might reach different

483
00:20:55.875 --> 00:20:59.645
conclusions about the constitutionality of federal statutes

484
00:20:59.645 --> 00:21:02.205
or regulations, and that that would deprive federal law

485
00:21:02.205 --> 00:21:05.565
of its uniformity if the Supreme Court lost the power

486
00:21:05.625 --> 00:21:07.325
to reconcile those differences.

487
00:21:07.325 --> 00:21:08.925
Those conflicts among the circuits.

488
00:21:09.995 --> 00:21:12.925
Some writers that, worries that proposals,

489
00:21:12.995 --> 00:21:15.365
like this would deprive the court of its power to protect,

490
00:21:15.425 --> 00:21:17.125
civil rights and civil liberties.

491
00:21:17.555 --> 00:21:20.085
Historian Charles Be Beard, for example, wrote

492
00:21:20.085 --> 00:21:23.845
that having seen sadism incarnate in members

493
00:21:23.945 --> 00:21:25.765
of congressional committees in charge

494
00:21:25.765 --> 00:21:29.125
of repressive legislation, I respectfully beg

495
00:21:29.125 --> 00:21:32.045
to be excused from giving sovereignty to Congress

496
00:21:32.555 --> 00:21:35.245
without nursing any allusions about the Supreme Court

497
00:21:35.245 --> 00:21:37.485
or staking any high hopes on its humanity.

498
00:21:37.485 --> 00:21:40.365
In an hour of crisis, I find myself unwilling

499
00:21:40.365 --> 00:21:42.245
to entrust everything I hold dear

500
00:21:42.745 --> 00:21:44.605
to a mere majority of Congress.

501
00:21:45.105 --> 00:21:47.845
The Congress of the United States could do a lot of damage

502
00:21:47.905 --> 00:21:50.445
to life as distinguished from property.

503
00:21:50.465 --> 00:21:54.405
He said, if it were turned loose without bridal or rider.

504
00:21:55.285 --> 00:21:57.625
And finally, several legal scholars expressed doubt

505
00:21:57.625 --> 00:21:59.545
that such proposals were constitutional.

506
00:22:00.325 --> 00:22:02.065
Uh, Harvard Law professor,

507
00:22:02.705 --> 00:22:05.745
constitutional law Professor Thomas Reed Powell predicted

508
00:22:05.745 --> 00:22:07.665
that the court would invalidate such a statute

509
00:22:07.765 --> 00:22:08.985
by a vote of nine to zero.

510
00:22:09.965 --> 00:22:12.945
Uh, Senate Judiciary Committee chairman Henry Fountain Hurst

511
00:22:12.945 --> 00:22:15.225
of Arizona stated that he was opposed

512
00:22:15.245 --> 00:22:16.905
to curtailing the power of the court

513
00:22:16.905 --> 00:22:19.705
to rule on the constitutionality of legislation,

514
00:22:20.045 --> 00:22:22.185
and that he did not believe that any member

515
00:22:22.185 --> 00:22:25.065
of the Senate Judiciary Committee would vote in favor

516
00:22:25.125 --> 00:22:26.505
of a proposal to do so.

517
00:22:26.845 --> 00:22:29.825
And as a result, this idea also went nowhere in Congress.

Roosevelt's Struggle with the Supreme Court

00:00:00 - President Roosevelt had been unhappy with the Supreme Court since, the spring of 1935, when the justices began invalidating one after another measure of his New Deal program. And so after winning a landslide victory in the general election in 1936, he decided that he needed to take some action to remove the obstacles to recovery and reform that he saw as being raised by the court's decisions. So in his annual message to Congress, delivered, on January 6th, 1937, president Roosevelt declared

00:00:34 - that there will be prolonged failure to bring legislative and judicial action into closer harmony means must be found. He insisted to adapt our legal forms and our judicial interpretation to the actual present needs of the largest progressive democracy in the modern world. After expressing, confidence that the executive and legislative branches of the national government would continue the task of making democracy succeed, the President remarked that the judicial branch also is asked by the people

00:01:08 - Two months later, president Roosevelt complained again that the Supreme Court stymied the New Deal at nearly every turn. He said that there was no definite assurance that the three horse team of the American system of government will pull together those three horses to which he referred were the three branches of the federal government. The Congress, the executive, and the courts, Roosevelt explained that if three well-matched horses are put to the task of plowing up a field where the going is heavy

Roosevelt's Court Packing Plan and Its Controversies

00:01:39 - then the field will be plowed. But if one horse lies down and the traces or plunges off in another direction, the field will not be plowed. And as things stood, he said two of the horses are pulling in unison today, the third is not. And so after considering a series of options, the president and his attorney General settled on what came to be called the court backing plan. And under that plan, the president would've had the opportunity to appoint six new justices to the court immediately increasing the number

00:02:11 - And they settled on this number, because it was the minimum number of additional justices that Roosevelt believed necessary to secure a dependable court majority that would be supportive of the New Deal. Critics raised a, a, a variety of objections, to the President's proposal, and, the, the opponents of the plan ultimately succeeded. In defeating it. The most common complaint was that the bill was an attack on judicial independence and on the separation of powers, critics argued

00:02:41 - to place justices on the court who would interpret the Constitution in a manner that was different, from the manner in which it had been interpreted by the incumbent, majority, was improper. and the president, they argued, was trying to subordinate the judiciary to the will of the other branches of government. So historian James Truslow Adams, for example, worried that as he put it, if the winning party can not only carry out its political, policies, but also alter the Constitution at will

Concerns Over Court Packing and Constitutional Integrity

00:03:13 - matters of life and death. Who can tell? He asked what man may be swung unexpectedly into power 10 years, hence, or sooner if President Roosevelt could, as he put it, bring the Supreme Court to heal by packing it, then some other man can do the same. If the President is once established, if one man and another one party and another are to be able to ensure the passage of all legislation by simply adding members to the bench, where do we end?

00:03:45 - we would also be electing a Supreme Court, which in regard to its duty of passing on the constitutionality of legislation, would be become merely another House of Congress acting as a rubber stamp not to pass on, but to sign any acts passed by the party in power. What then Adams asked becomes of the Constitution and the Bill of Rights guaranteeing our personal liberties. So critics of court packing argued that the President's three horse metaphor was simply inapt.

00:04:16 - and the checks on one another that they've been granted were fundamental to the architecture of our constitutional democracy. The president's proposal they argued, was an attempt to amend the Constitution without going to the American people through the mechanism for amendment that was set forth in Article five of the Constitution. If the people wanted to amend the Constitution to provide the federal government with greater regulatory power, article five of the Constitution prescribed the proper method.

Debate on Court Packing and Legislative Proposals

00:04:45 - justices had been misinterpreting the constitution either willfully or corruptly, or through a spirit of malicious intent, the appropriate remedy, there was impeachment, not enlargement of the court. And so commentators who shared the President's concern over some of the court's recent decisions and were openly critical of those decisions, still maintained that there was a right way and a wrong way to address those concerns. And they insisted that court packing was, as they put it the wrong way, members of Congress introduced a variety of different, proposals

00:05:20 - as the court problem. many of those would've expanded federal regulatory power or relaxed the restraints that were imposed on economic regulation, by the due process clauses of the Constitution. A number of others were designed to make the process of constitutional amendment easier. but many of the pro other proposed amendments were directed toward the court. one idea, would've permitted Supreme Court decisions to be overturned by a two-thirds vote of both houses

00:05:51 - for the House of Representatives, which happens every two years. The analogy here was to the congressional Override of a presidential veto of a bill, which Congress can do by two thirds of vote of both houses. the principal proponent of this particular proposal was Burton Wheeler, the Montana Democrat who led the Senate opposition to the court packing plan, and who had supported such an override proposal when he was Robert Lafa running Mate on the Progressive Party ticket in

Opposition to Wheeler's Proposal for Constitutional Change

00:06:21 - Wheeler's proposal did find some support in the academic and the periodical literature, but it also encountered significant opposition. for example, Columbia's law school Dean opposed it because, as he said, it would give Congress power to amend the Constitution by a simple two-thirds vote, and that would happen possibly as another, observed at the expense of civil liberties and civil rights. another commentator derided the proposal as one under which a bad statute shall become good

00:06:55 - as a childish approach to the problem. And others criticized the proposal as one that would take judicial power from the court and vest it in Congress. As one Harvard law professor remarked, it was not the function of Congress to decide cases between private litigants. Another law professor claimed that their proposal would be like allowing the members of a baseball team to overrule a call made by the umpire. some critics worry

00:07:25 - with those of constitutionality and that a congressional override might not, necessarily be the result of serious constitutional deliberation. And others pointed out that, piecemeal constitutional amendment by overruling particular decisions was not a sound way to preserve a stable and orderly constitutional system for these and perhaps other reasons that that proposal found little support in Congress. President Roosevelt had contended that the court needed new and younger blood.

Addressing Judicial Age and Competence

00:07:55 - and economic problems would be decided by, as he put it, younger men who have had personal experience and contact with modern facts and circumstances under which average men have to live and work. The President insisted that a lowered mental or physical vigor leads men to avoid an examination of complicated and changed conditions. Little by little, he said New facts become blurred through old glasses fitted, as it were for the needs of another generation.

00:08:26 - as it was in the past, ceased to explore or inquire into the present or the future. Thus, he argued it was necessary to save our national constitution from hardening of the judicial arteries. Members of Congress introduced numerous proposals to limit the tenure of justices to a specified period, typically between nine and 18 years. those proposals didn't receive much attention in Congress as it turned out,

00:08:57 - during good behavior that's conferred by the Constitution was as one, put it necessary in order to attract competent lawyers to the bench and to give incumbents that independence, which will ensure fair and impartial performance of judicial duties. Another commentator insisted that a judge's term in office be sufficient to fortify him against all the insidious influences of self-interest, whether secretly operating in his own mind or being exerted upon him by others.

Concerns Over Judicial Independence and Tenure Reform

00:09:30 - that short judicial terms, as Bryce put it, sap the conscience of the judge for they oblige him to remember and keep on good terms with those who have made him what he is and in whose hands his fortunes lie. They induce timidity, they discourage independence. Bryce worried about ways in which sinister influences can play on a judge's mind and impair that competence in his impartiality, which is almost as necessary as impartiality itself.

00:10:03 - shouldn't be thinking about what they would be doing for a living after their judicial term concluded, they needed to be kept independent of all pressure. So critics contended that legit, limited judicial terms couldn't perform that important function. The more common proposal for limiting judicial tenure was a constitutional amendment to impose a mandatory retirement age upon federal judges and justices. most of these joint resolutions proposed 75

00:10:34 - Though a few proposed younger ages such as 70 and one would've raised the age to 80, such proposals found considerable support among opponents of court packing. And in fact, a mandatory retirement amendment was the measure that polled best with the general public, but many liberals opposed. Such an approach contending that many judges were perfectly capable of performing their duties beyond the age of 70. Justice Holmes had served with distinction beyond his 90th birthday,

Judicial Retirement and Court Packing: Roosevelt's Strategy

00:11:06 - to serve with distinction. At the age of 80, president Roosevelt rejected proposals to limit judicial tenure or to impose mandatory retirement. And so they got no traction in Congress. But the proposal that did gain traction was a bill that would allow justices to retire with the assurance that their pensions would not be reduced. Both Justice Willis Vandevanter and Justice George Sutherland were rumored to be anxious to retire. But under the judicial pension system

00:11:37 - who had resigned from the court were not protected against reductions in their stipends. In fact, justice Holmes had resigned in 1932, and in the following year, Congress had cut his pension in half with the Economy Act in 1933. In January of 1937, house Judiciary Committee Chairman Hatton Sumners introduced a bill permitting justices to retire at full salary. after President Roosevelt introduced his court packing bill on February 5th, that,

00:12:08 - of Congress and was signed into law by the president by March 1st. Justice Vanvan retired on May 18th, and Justice Sutherland retired the following January saying in fact that he would've done so earlier if the court packing plan had not been pending. Those two retirements and their replacements with justices Black and Reed gave President Roosevelt a solid liberal majority on the Supreme Court. President Roosevelt, was opposed

Challenges to Constitutional Amendments and Court Packing

00:12:40 - of constitutional amendment, because he believed that its framing and passage by Congress and ratification by the States would take too long, and could be too easily blocked by conservative interests in the legislatures of states that contained only a fraction of the nation's population. So, for example, the President argued, that states containing only 5% of the voting population could block ratification, even though 35 states with 95%

00:13:14 - and, as well, that powerful economic interests would pretend to favor amend an amendment and then would sabotage any constructive amendment that was proposed. And so he contended packing the court by statute was the only viable solution. Now, opponents of court packing, in fact, vigorously contested those claims. they rejected the contention that the amendment process is too slow and cumbersome, agreeing with Texas Democratic Senator Tom Connelley,

00:13:46 - and are overwhelmingly for it, it can be done speedily. That was particularly the case if Congress were to choose state conventions as the means of ratification, as had been done effectively, with the 21st Amendment, repealing prohibition in 19, 33. And if the President who was as some put it very strong politically, would put his great prestige and influence behind it, commentators repeatedly noted that many amendments, including the two most recent

Concerns Over Constitutional Amendment Processes

00:14:17 - time that they were submitted to the States, and that many others had been ratified in fewer than 15 months. some claim that the president's attempt to do an in run around the procedures for amendment specified in the Constitution showed a lack of faith in the Democratic process. others argued that the scenario under which 13 states of small population would defeat an amendment was fantastical. As one Chicago lawyer put it, the states of small population do not have common interests.

00:14:48 - to defeat an amendment. Columbia's law School Dean said he could think of no proposed amendment in which 95% of the people were for it, and 5% of the people blocked it. He and others marveled at the suggestion that the president who had won 46 of the 48 states in the electoral college in the preceding general election, could have serious concerns about ratification of an amendment that he proposed. Raymond Moley, a journalist who had formerly worked in the White House, derd

00:15:17 - of those mathematical propositions in which you bring out that the Omaha High School could have beaten Notre Dame and did, in fact, and that is shown from the statistics, the fact he argued is that these 13 states never went together in any attempt to put through a constitutional amendment, and they probably will not. And to assert that these 13 small states were off of this kind of handicap, I think is to resort to the kind of mathematical puzzles that are indulged in by sports writers when they haven't anything else to do.

Current Proposals and Political Dynamics in Judicial Reform

00:15:51 - neither of the two major political parties is as dominant as the Democrats were in the mid 1930s. and many of the issues that come before the court today are ones on which citizens have perhaps even stronger in more deeply divided views. there are recent polls showing substantial majorities, in favor of term limits or compulsory retirement for justices. but whether those proposals could navigate the amendment process under present political circumstances,

00:16:21 - It may depend on how the amendment is formulated. for example, does it apply only to justices appointed after the amendment is ratified? But in any event, it may be that President Roosevelt's arguments concerning the difficulty of amending the Constitution are more powerful today than they were when he made them back in the 1930s. There were, there are some, types of proposals that I didn't raise in my earlier question, and so I should probably fill out the story by, referring to them here.

00:16:51 - of Congress introduced several joint resolutions to require that the court provide advisory opinions on the constitutionality of federal legislation at the request of president or Congress. Federal courts, establ, it was established early in the Republic, do not provide such advisory opinions in some of our states. They do. and so it was proposed that the federal, Supreme Court provide, advisory opinions such as some state courts do, those proposals received some,

Concerns Over Advisory Opinions and Judicial Independence

00:17:22 - but, often with the qualifying observation that these advisory opinions would be of limited utility because 'cause they could address only the facial validity of legislation and not its validity as applied to particular factual circumstances. And that was a matter of considerable concern, especially with respect to the reach of the federal commerce power under which most federal regulation was conducted. others worried that the justices, if they were asked

00:17:54 - of the research and arguments of counsel that were produced by adversarial litigation. nor would they have the benefit of the decisions of lower courts before which these cases have been heard or professional commentary on the decisions of those lower courts. critics worried as well that the possibility of requiring advisory opinions would impose additional burdens on the court, which in turn would reduce the consideration that they could give to other matters that was on, that were on the court's docket, that some commentators,

00:18:27 - and should be perfectly capable of assessing the constitutionality of a proposed bill on their own, and that the court's past decisions, provided adequate guidance for the exercise of their judgment in that role. In addition, some argued if members of Congress could rely on the court to be the bad guy, they might be tempted to propose irresponsible measures of dubious constitutionality and then explain to their constituents that they had favored a particular proposal, but that the court just wouldn't let them enact it.

Proposals for Supermajority Voting in Court Decisions

00:19:01 - of Congress introduced, were, were measures that would've changed the court's voting rules, to require a super majority of six or seven, or eight, or even all nine of the justices in order to invalidate federal or state legislation. Legislators believe that such a change could be accomplished by statute, but the weight of opinion seems to have held that such a change to the court's voting rules could be accomplished only by a constitutional amendment.

00:19:29 - along these lines took that form. there were a number of commentators who opposed such a measure, because as they argued, it would give a minority of justices the power to prevent the court from declaring an act unconstitutional. They argued that this would first violate the principle of majority rule, and that it could result in the denial of justice to individual litigants, who might be denied civil rights or even sent to prison under a law, that a majority

00:20:01 - The state of Ohio had adopted a super majority voting requirement, in its, on its Supreme Court in, 1912. and several observers, including at least some of the Ohio judges themselves, thought that the results of that had been unsatisfactory and indeed, Ohio later repealed that provision of its constitution. finally, there were, a number of proposals to deprive the court of its power to declare acts of Congress unconstitutional in cases arising under the

Concerns Over Judicial Proposals and Civil Liberties

00:20:31 - where its hearing appeals from other courts. such proposals were supported by some commentators in the labor movement and on the political left, but most observers appear to have opposed them. the Roosevelt administration thought that these proposals wouldn't fix the problem because lower federal courts were still dominated by Republican judges who were hostile to the New Deal. others worried that, different federal circuit courts might reach different conclusions about the constitutionality of federal statutes or regulations, and that that would deprive federal law

00:21:05 - to reconcile those differences. Those conflicts among the circuits. Some writers that, worries that proposals, like this would deprive the court of its power to protect, civil rights and civil liberties. Historian Charles Be Beard, for example, wrote that having seen sadism incarnate in members of congressional committees in charge of repressive legislation, I respectfully beg to be excused from giving sovereignty to Congress

00:21:35 - or staking any high hopes on its humanity. In an hour of crisis, I find myself unwilling to entrust everything I hold dear to a mere majority of Congress. The Congress of the United States could do a lot of damage to life as distinguished from property. He said, if it were turned loose without bridal or rider. And finally, several legal scholars expressed doubt that such proposals were constitutional. Harvard Law professor,

Senate Opposition to Curtailing Court Power

00:22:26 - that the court would invalidate such a statute by a vote of nine to zero. Senate Judiciary Committee chairman Henry Fountain Hurst of Arizona stated that he was opposed to curtailing the power of the court to rule on the constitutionality of legislation, and that he did not believe that any member of the Senate Judiciary Committee would vote in favor of a proposal to do so. And as a result, this idea also went nowhere in Congress.

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