Court-Packing Plan and the Commerce Clause
Perhaps the most dangerous
attack upon the independence of the United States Supreme Court
was President Franklin D. Roosevelt's proposal early in February,
1937 to allow the President to appoint up to six additional Justices
to the Supreme Court to sit in addition to each Justice over 70
years of age. Although the professed object was to alleviate congestion
in the Court, the obvious, though unexpressed, purpose was to
overturn the rulings of five or six of the Justices invalidating
both state and federal laws regulating business, including the
major statutes of the New Deal. All of the four Justices--Van
Devanter, McReynolds, Sutherland and Butler--who invariably voted
against constitutionality, as well as Chief Justice Hughes and
Justice Brandeis, were then over 70.
A few days
later NLRB v. Jones & Laughlin Steel Corp. ,
301 U.S. 1, and other cases involving the constitutionality of
the National Labor Relations Act were argued. The Washington minimum
wage case--West Coast Hotel Co. v. Parrish--had
been argued early in December.
On March 29 the Court
sustained the constitutionality of the Washington statute (300
U.S. 379), overruling Morehead v. Tipaldo, 298 U.S.
587 (1936), which had invalidated a New York minimum wage statute
on June 10, 1936, ten months before. On April 12 in the Jones
& Laughlin case, the Court upheld the constitutionality
of the NLRA as applied to manufacturers of goods shipped in interstate
commerce, in substance overruling Carter v. Carter Coal
Co. ,298 U.S. 238, which eleven months before had found that
the commerce power did not permit federal regulation of labor
regulations in the coal industry. The same nine judges were sitting.
Chief Justice Hughes,
who had dissented in the Morehead case but had joined with
the conservative majority in the part of the Carter decision
dealing with labor relations, wrote the opinions for the majority
of five in both West Coast Hotel and Jones & Laughlin.
Justice Roberts, who had concurred in the decisions against
constitutionality in both More head and Carter Coal,
joined with the Chief Justice to make the majority in both
West Coast Hotel and Jones & Laughlin cases.
The Social Security Act was held constitutional by the same 5
to 4 vote in Steward Machine Co. v. Davis, 301
U.S. 548 and Carmichael v. Southern Coal and Coke .Co.
,301 U.S. 495 on May 24,1937. No change in the membership
of the Court occurred until the end of the Term the next week
when Justice Van Devanter retired.
After these- decisions
the Court-packing plan made no progress in Congress, although
the President stubbornly refused to withdraw it. The unsatisfied
question was what had induced Justice Roberts and to a lesser
extent the Chief Justice, to change their votes. The general consensus
at the time was that the plan had achieved its purpose, that the
legislation designed to cope with the problems of the great depression
of the 1930s would no longer be held unconstitutional.
To lawyers it then
seemed obvious, as I wrote in 1946 ("The Commerce Clause and the
National Economy, 1933-1946", 59 Han'. L. Rev. 645, 681),
that though "No one who did not participate in the conferences
of the Court will know the answers to those questions,
few attributed the
difference in results between the decisions in 1936 and those
in 1937 to anything inherent in the cases themselvestheir
facts,...the arguments presented, or the authorities cited.
But the consensus among the lawyers speculating on the Court's
sudden reversal was that the Chief Justice and Mr. Justice Roberts
believed that the continued nullification of the legislative
program demanded by the people and their representativesas
manifested in the 1936 electionwould lead to acceptance
of the President's Court plan, and that this would seriously
undermine the independence and prestige of the federal judiciary,
and particularly of the Supreme Court, without preventing the
President from attaining his objective. Chief Justice Hughes
was subsequently cited for his "statesmanship" in using the
cases as potent weapons in a successful campaign, in which he
was somewhat inhibited by his judicial position, to combat the
plan. Whether or not there was any basis for these conjectures,
government counsel, or most of them, accredited their victory
more to the President than to anything they had said or done.
The object of this
paper is to revaluate this conclusion on the basis of information
which has subsequently become available, and perhaps with more
objectivity, years after the author had participated in many
of the commerce clause cases writing briefs in support of the
constitutionality of the statutes. For facts subsequently disclosed
cast doubt on the accuracy of the assumption that the Court-packing
proposal had motivated the votes of Chief Justice Hughes and Justice
A. The Minimum
An article by Merlo
J. Pusey, the principal biographer of Chief Justice Hughes, in
the 1984 issue of this Yearbook, ("The Hughes Biography:
Some Personal Reflections", 48), stated that "until the Hughes
biography was published" in 1951 "the fact was not known outside
the Court" that "Justice Roberts had switched his vote in regard
to the state minimum wage laws before the Court-packing bill had
been disclosed". Another article in the same issue by John Knox,
former law clerk to Justice McReynolds ("Some Comments on Chief
Justice Hughes", 34, 41) called attention to the fact that, when
voting in that case in the normal course several weeks after it
was argued in December, 1936, with Justice Stone absent because
of illness, the Court had divided 4 to 4.
That meant that Justice
Roberts must have voted with Chief Justice Hughes and Justices
Brandeis and Cardozo against the four conservatives. The formal
vote of 5 to 4 after Stone had returned to the bench also
was taken "shortly before the President's plan was announced"
early in February. Although the opinion was not handed down until
March 29, the above facts show that neither the Chief Justice
nor Justice Roberts had been influenced by the plan when they
determined to sustain the state statute in that case.
The details as to
Roberts' vote in the minimum wage cases were more fully revealed
in 1955, four years after Pusey's biography of Hughes was published.
In a memorandum given by Roberts to Justice Frankfurter shortly
after Roberts' retirement from the Court in 1945, Roberts told
the whole story.
it appropriate to make the memorandum public in his contribution
to an issue of the University of Pennsylvania Law Review (104
U. of Pa. L. Rev. 311, 314), commemorating Justice Roberts shortly
after his death. The memorandum confirmed what Mr. Pusey had already
learned from Chief Justices Hughes, that Robests voted against
the validity of the New York minimum wage statute in the Morehead
case because New York was arguing only that that case was
distinguishable from the Court's 1923 decision in Adkins v.
Childrens Hospital, 261 U.S. 525, "that it was unnecessary
to overrule the Adkins case in order to sustain" New York's position.
In Justice Roberts' words:
The argument seemed
to me to be disingenuous and born of timidity. I could find
nothing in the record to substantiate the alleged distinction.
At conference I so stated, and stated further that I was for
taking the State of New York at its word. The State had not
asked that the Adkins case be overruled but that it be
distinguished. I said I was unwilling to put a decision on any
such ground. The vote was five to four for affirmation, and
the case was assigned to Justice Butler.
I stated to him
that I would concur in any opinion which was based on the
fact that the State had not asked us to re-examine or overrule
Adkins, and that, as we found no material difference
in the facts of the two cases, we should therefore follow theAdkins
case. The case was originally so written by Justice Butler,
but after a dissent had been circulated he added matter to his
opinion, seeking to sustain theAdkins case in principle.
My proper course would have been to concur specially on the
narrow ground I had taken. I did not do so. But at
conference in the Court I said did not do so. But at conference
in the Court I said that I did not propose to review and re-examine
the Adkins case until a case should come to the Court
requiring that this should be done. (Italics added)
The italicized sentence
indicates that Roberts subsequently concluded that he should have
restricted his concurrence to the narrow ground of New York's
failure to request an overruling of Adkins. In his article
Justice Frankfurter agreed, as did Dean Erwin N. Griswold in a
companion article ("Owen J. Roberts as a Judge", 104 U. of
Pa. L. Rev., 332, 343-344 (1955)), in which he concluded:
the only criticism
that can be made, I think, is that [Robertsl did not sufficiently
make his position known in the Tipaldo case
He did not take the steps to identify the procedural issue
with himself. This may have been an error in opinion writing.
It was not a vote under political pressure.
B. The Labor
Hughes and Roberts
had, of course, not taken a position in the Labor Board cases
before the Court-packing plan was announced on February 5, 1937.
Those cases were argued from February 9 to 11.
Mr. Knox recalled
that "at one of the Saturday conferences not long after these
dates the Justices cast their votes and once again Roberts sided
with the liberals and the final vote stood at S to 4--the same
as in the West Coast Hotel case." This of course does not
establish whether in those cases Hughes or Roberts were influenced
by the Court plan when they surprisingly changed the Court's position
as to the scope of the commerce power.
1. Chief Justice
As to Chief Justice
Hughes, in 1913 and 1914, when he was first on the Court, he wrote
the leading opinions in the Minnesota Rate Cases, 230 U.S.
352, 398, and the Shreveport Case, 234 U.S. 342, which
established the power of Congress "to regulate many interstate
activities impinging on interstate commerce. Congress could protect
interstate commerce from injury, no matter what the source of
that injury might be." (Pusey, Yearbook 1984, p.50.)
His opinion for a
unanimous Court in the Schechter case in 1935 reaffirmed
that principle. The Court there held, not unreasonably, that although
the Sherman Act had the year before been held applicable to the
wholesaling of live poultry from other states in New York City,
the specific practices involved in the NRA Code were too indirectly
related to interstate commerce to come within the commerce power.
Cf. Local 167 v. United States, 291 U.S. 293 (1934).
Two weeks before Schechter
the Chief Justice had written a strong dissent from Justice
Roberts' opinion for a conservative majority of five in the Railroad
Retirement case. He concurred with those five Justices, however,
in invalidating the Agricultural Adjustment Act in United States
v. Butler, 297 U.S. 1, early in 1936. In that case,
where the government had relied on the tax and general welfare
clauses, not the commerce clause, Roberts' opinion seemed to state
without qualification that Congress had no power to regulate agricultural
production. In the Carter Coal case a few months later
Hughes did not join in Sutherland's majority opinion, but in a
"separate" opinion of his own agreed with the part of the majority
opinion which held that federal power did not extend to the regulation
of labor conditions in the coal industry no matter how great the
effect on interstate commerce.
Those opinions will
be considered more fully below with respect to Justice Roberts,
who had written or concurred in them fully. Insofar as the Chief
Justice was concerned, despite his Carter opinion, his
prior pronouncements and votes as to the scope of the commerce
power and his failure to join in the majority opinions in Railroad
Retirement and Carter gave some reason to believe that
he would not join the conservative wing of the Court in passing
upon the validity of the National Labor Relations Act. His record
as a whole was not sufficiently one-sided to warrant discrediting
his own statements as recorded by Mr. Pusey (at p. 768) after
Hughes' retirement from the Court. Professor Paul Freund, writing
in 1967, was persuaded by this material, even though he thought
that Hughes' "own protestations that he was perfectly consistent
are not perfectly convincing.. ."in the light of his separate
opinion in Carter. (Freund, "Charles Evans Hughes as Chief
Justice", 81 Han'. L. Rev. 4, 34(1967). I agree that these
subsequent disclosures preclude anyone who had not talked to him,
as Pusey had, from concluding that his votes in the Labor Board
cases were so inconsistent with his prior positions as to establish
that they were motivated by a desire to defeat the Court-packing
Mr. Pusey's biography,
which undoubtedly reflected the Chief Justice's position, suggests
that the 1935 and 1936 decisions invalidating the earlier New
Deal statutes and the subsequent 1937 cases were entirely consistent,
because the later statutes had been more skillfully drafted in
the light of accepted commerce clause principles. There is something
to this explanation of the later decisions; of course, the draftsmen
of the newer statutes took advantage of what the decisions invalidating
the earlier laws had said. But that is by no means the whole story.
Language and reasoning in Railroad Retirement, Butler, and
Carter could reasonably be read to mean that five or six
of the Justices believed that Congress completely lacked power
to regulate intrastate aspects of interstate industry, no matter
what the economic effect. If those decisions could have been construed
as curable by better draftsmanship, the Administration's lawyers,
who were never charged with stupidity, would never have accepted
the necessity of a challenge to the independence of the Supreme
Court in a way which was certain to arouse tremendous opposition
even among many of their own supporters. Although the earlier
cases might have been distinguishable, there was little reason
to believe at the end of 1936 that a majority of the Court wanted
to distinguish them.
Justice Roberts' prior
opinions left little room for such hope. His opinion for the
Court three weeks before Schechter in Railroad Retirement
Board v. Alton Railroad, 295 U.S. 330, from which Chief
Justice Hughes and Justices Brandeis, Stone and Cardozo dissented,
seemed to manifest his approach as to the scope of the commerce
power. The majority there held that a federal statute establishing
a retirement program for railroad employees "is not in purpose
or effect a regulation of interstate commerce within the meaning
of the Constitution" (295 U.S. at 362). Characterizing the majority
decision as holding that "the subject matter itself lies beyond
the reach of" the commerce power even for interstate railroads,
the dissenters insisted that the "sovereign power to govern interstate
carriers extends to the regulation of their relations with their
employees who likewise are engaged in interstate commerce." (295
U.S. at 375-376.) The majority's restrictive interpretation of
the commerce power as applied to railroads clearly foreshadowed
the attitude of the same five Justices with respect to federal
regulation of aspects of less interstate industries no matter
what the effect on interstate commerce.
Any doubts on that
score would seem to have been removed by two decisions in 1936.
The opinion by Justice Roberts for six Justices (including Chief
Justice Hughes) in United States v. Butler, 297
U.S. 1, invalidated the Agriculture Adjustment Act of 1933, which
taxed processors of agricultural products in order to provide
funds to pay farmers for reducing the size of their crops and
thereby to raise farm prices from disastrously low levels.
The government relied
on the power to tax and provide for the "general Welfare," not
the commerce clause. After holding that the "general Welfare"
was not limited by the specific powers granted Congress, Justice
Roberts' opinion found it unnecessary to decide whether such an
appropriation in aid of agriculture fell within the general welfare.
For it found that no power to "regulate and control
agricultural production," even by spending tax money, had been
granted, and that therefore the Tenth Amendment forbade any such
action by Congress (297 U.S. at 68). Thus, although the opinion
does not mention the commerce power, it left the undoubted impression
that the six Justices who joined in it thought that Congress had
no power to regulate production in any industry.
This was confirmed
four months later in Carter v. Carter Coal Company,
298 U.S. 238. Five justices, including Justice Roberts, there
joined in an opinion by Justice Sutherland holding that labor
relation in the coal industry could not be regulated under the
commerce power; restraints upon the production of coal by strikes
could not be said to directly affect interstate commerce no matter
what the magnitude of the effect (298 U.S. at 308):
If the production
by one man of a single ton of coal intended for interstate sale
and shipment, and actually so sold and shipped, affects interstate
commerce indirectly, the effect docs not become direct by multiplying
the tonnage, or increasing the number of men employed, or adding
to the expense or complexities of the business, or by all combined.
The opinion thus gave
no weight to the government's evidence that labor disputes in
the coal industry, which the regulation of labor relations was
designed to reduce or resolve, could shut down all the railroads
in the United States and the industries dependent on the railroads,
thus stifling a large proportion of all interstate commerce. The
opinion then held the entire Coal Act unconstitutional on the
ground that the other provisions, which related to price fixing,
were inseparable from the labor provisions.
The uncertainty as
to the basis for Justice Roberts' change in position led Charles
A. Leonard to embark upon a thorough study in the 1960s. This
resulted in a short book in 1971 entitled: A Search ForA Judicial
Philosophy: Mr. Justice Roberts and the Constitutional Revolution
of 1937 (National University Publications, Kennikat Press,
Port Washington, N.Y. ) Professor Leonard examined all possible
sources for an explanation of Roberts' change of position. He
interviewed Roberts' family, other Justices, his law clerks, and
other persons who knew him, but to no avail.
The Justice left no
papers which threw any light on the reasons for his vote in the
Jones & Laughlin case. Professor Leonard could
find only three possible relevant statements which are summarized
in his book as follows (pp.155-157):
 Appearing before
the Senate judiciary subcommittee [in 1954] he [Robertsl declared,
'Now I do not need to refer to the Court-packing plan which
was resorted to when I was a member of the Court. Apart from
the tremendous strain and the threat to the existing Court,
of which I was fully conscious, it is obviously if ever resorted
to, a political device to influence the Court and to pack it
so as to be in conformity with the views of the Executive or
the Congress, or both.
 On the
other hand, in his Oliver Wendell Holmes Lectures delivered
at Harvard in 1951, the former Justice declared that 'looking
back it is difficult to see how the Court could have resisted
the popular urge for uniform standards throughout the country
for what was in effect a unified economy.'
 In the memorandum
which Roberts gave to Felix Frankfurter when he left the Court
in 1945, the retiring Justice concluded his relating of the
facts in the West Coast Hotel case with the following comment:
'These facts make it evident that no action taken by the President
in the interim had any causal relation to my action in the Parrish
can be offered in refutation of the accusation that Roberts
bent to the wind of executive-legislative threat.
The third item was,
of course, conclusive as to West Coast Hotel. But it did
not refer to Roberts' vote in the Jones & Laughlin case,
which was not the subject of his memorandum to Justice Frankfurter.
Whether any negative inference can reasonably be drawn from the
fact that Roberts made such a statement only as to West Coast
Hotel is doubtful.
attempt to uncover further information was unsuccessful. He notes
(p. 155) that "respected commentators" during that period
had different views. Professors Carl B. Swisher and Edward S.
Corwin were inclined to believe that the Court plan was a major
factor (p. 155). Professor Felix Frankfurter wrote to Justice
Stone the day after the Washington minimum wage decision that
"Roberts' somersault is incapable of being attributed to a single
factor relevant to the professional judicial process" (Leonard,
at p. 137) This not very subtly implies that an extraneous factor
had been decisive, a position which in 1945 Justice Frankfurter
found to be incorrect.
On the other hand
John Lord O'Brian, an eminent attorney, who was a close social
as well as professional associate of the members of the Court
during this period, told the author (Leonard) that in his opinion
the personalities of the Justices precluded any sort of knuckling
under pressure from Congress or the White House. "I don't think
the Court plan had an influence on the Court. These men duction
of the bill made them more stubborn than- before".(Id. at 155.)
After Roberts' death, Erwin Griswold concluded, because
of his reasonable belief in Roberts' integrity and high regard
for the judicial process, that "Roberts' votes in these cases
seem to me to be fully explicable simply as a natural development
of his views." (104 U of Pa. L. Rev, at 345(1955)).
I have not attempted
to redo the massive project undertaken by Mr. Leonard. All that
can accurately be said is that Roberts' opinions and votes in
1935 and 1936 are difficult to reconcile with his joining in the
Labor Board decisions in 1937.
reasons have been advanced "for the change: political pressure,
the overwhelming victory of the administration at the polls in
November, 1936, the labor strife, especially in the automotive
industry, Roosevelt's Court Reorganization plan, and, 'finally,
Justice Roberts, even though reluctant to take the lead, remained
open to persuasion, and gradually became convinced of the need
for change." (Professor Mario Einaudi, as summarized on p. 137
of Professor Leonard's book). Nevertheless it is difficult to
believe that what Roberts himself described as a "threat to the
existing Court, of which [he] was fully conscious", might not
have had some effect. Pointing in the opposite direction is the
confidence of persons who knew him that Roberts' undoubted integrity
would not permit a judicial decision to be influenced by -such
an extraneous consideration.
To his own questions
as to what might have caused the change, Professor Leonard could
(p. 137): "These are
questions which after thirty-plus years have still not been answered."
After 50 years, they
almost certainly never will be. The speculation in my 1946 article
as to the conjectures of governmental counsel that the President's
plan rather than the merits of the cases or the quality of the
law work was responsible for the Jones & Laughlin decision
implies much more certainty on the subject than I now have.
The reader more than
50 years after the events described above may wonder why the Supreme
Court in 1937 would have taken seriously such a revolutionary,
and indeed absurd, proposal to overturn Supreme Court decisions.
Certainly any such proposal these days by a President, or a President
and Congress, to enlarge the Court so as to overrule unpopular
enlarge the Court so as to overrule unpopular decisions would
be branded as outrageous, for lack of a stronger word. And
it did arouse strong opposition in 1937--although its defeat was
by no means certain until after the decisions discussed above.
Paul Freund's words ("Charles E. Hughes as Chief Justice", 81
Han'. L. Rev. 4, 13 (1967)), such a "shockingly crude...
assault on the independence of the judges cannot be understood
without an appreciation of the atmosphere in the courtroom"--and
I add, in the nation. A letter from Judge Learned Hand in June,
1937 described the Court as having "been controlled by the most
amazing lot of crustaceans" --although President Roosevelt's "expedient
was as bad as the evil and so disingenuous that he would have
been injured very seriously, if anything could injure him". (Id.
First, it should be
noted that neither Attorney General Homer Cummings nor President
Roosevelt had previously been regarded as in any way radical or
hostile toward the judiciary or judicial decisions. Persons supporting
the plan included Hugo Black and Robert Jackson, subsequently
distinguished members of the Supreme Court. I remember that my
own feelings were mixed. Obviously, they may have been affected
by my participation as a young lawyer in the Department of Justice
in the writing of briefs in many of the commerce clause cases
during that period.
Those who supported
the plan, or even had doubts about it as I did, were affected
by their knowledge of the plight of the country at that time.
To use only figures I can remember, industrial production by that
time had fallen almost 50 percent, about one-third of the public
was out of work, prices and wages had fallen to disastrous levels.
The price of oil at the wellhead had dropped to five cents per
barrel --and I don't mean per gallon. (See 59 Harvard
Law Review 654.) Wages for railroad track-men had gone as
low as 10 cents per hour.
was attempting to bring the nation out of a downward spiral of
wages, employment and prices. The new laws were designed to raise
prices, often by diminishing the quantity of a product being
grown or mined, and to improve employment and purchasing power
by requiring collective bargaining and imposing maximum hours
and minimum wages. These were deemed to be reasonable methods
of improving the economy which, of course, consisted largely of
The Supreme Court
in Butler and Carter had by a 6 to 3 vote held that
the federal government had no power to deal with such problems,
and, prior to the West Coast Hotel case, by a 5 to
4 vote that the states didn't either. The result was that no governmental
agency could take steps which were reasonably regarded as methods
of defeating the depression, both generally and in interstate
industries. This was the dilemma which the Roosevelt administration--and
the nation--faced in 1937.
From this distance,
with knowledge that two of the conservative justices would retire
within a year, it is easy in hindsight to say that in time the
Supreme Court would change and that drastic action was not necessary.
But to tell the country to continue to wait, perhaps for years,
would not have satisfied the farmers, workers, unemployed, or
even many businessmen (including both my father and my wife's
father), who were out of work or receiving less than a living
wage. Of course, if the proposed remedies had clearly been unconstitutional
no one could have blamed the Justices; a constitutional amendment
would have been recognized to be essential. But when three or
four of the outstanding members of the Supreme Court, including
such prominent Republicans as Stone and Hughes, as well as Brandeis
and Cardozo, took the opposite position, the President and the
public not unreasonably blamed the judicial blockade on the other
justices, four of whom, frequently with Roberts in support, had
held unconstitutional the major efforts to deal with the nation's
We do not know now,
and did not then, whether the laws in question would have adequately
revived the nation's economic and commercial structure. World
War II eventually did that. But the above facts may demonstrate
how sensible and conscientious public servants could support such
a dangerous attack on the independence of the judiciary. It would
have been a terrible precedent. I hope nothing like that will