Over the course of three terms, starting in 1934, the Supreme Court struck down a large part of the Franklin D. Roosevelt’s New Deal, provoking a continuing constitutional crisis. President Roosevelt naturally criticized the Court on a number of occasions, the last time in June of 1936; but because of the negative response from Congress and members of the media in those instances, he said nothing about the Court during the 1936 presidential campaign. Supporters of the New Deal proposed a variety of ways of bringing the Court into line with their program, including statutes to require an extraordinary majority of justices to strike down a law, constitutional amendments to mandate retirement at 70 or 75, and so on (Ross 1994, Stephenson 1998). During the 1936 election, Governor Landon and other Republicans attempted to use the Court’s recalcitrance to portray Roosevelt and the Democrats as enemies of the Constitution, liberty, and property. Notwithstanding the barrage of criticism, Roosevelt and the Democrats won a massive landslide in 1936, with the President taking all but two states in the Electoral College and Democrats controlling all but sixteen seats in the Senate and eighty in the House.
On February 5th, 1937, after months of planning, FDR announced his Federal Court Reorganization Bill. This legislation provided for an additional seat on the Supreme Court for each justice over the age of seventy, with a maximum of six new positions; proctors for litigation in the Supreme Court and lower federal courts; and additional judgeships in lower federal courts for judges over the age of seventy. President Roosevelt couched the bill as a means of improving efficiency, of helping justices who were behind on their work and were dismissing large number of cases each term. This proposal set almost immediately set off a spectacular political battle, culminating 168 days later in the defeat of FDR’s proposal on the floor of the Senate (Alsop and Catledge 1938,...
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