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Court-Packing and Compromise

CONSTITUTIONAL COMMENTARY, Vol. 29, No. 1 (2013)

Notre Dame Legal Studies Paper No. 1450

31 Pages Posted: 19 Sep 2013 Last revised: 18 Sep 2017

Barry Cushman

Notre Dame Law School

Date Written: September 18, 2013

Abstract

President Franklin D. Roosevelt’s 1937 Court-packing bill would have permitted him to appoint six additional justices to the Supreme Court, thereby expanding its membership to fifteen immediately. Throughout the ultimately unsuccessful campaign to enact the measure, Roosevelt was presented with numerous opportunities to compromise for a measure authorizing the appointment of fewer additional justices. The President rejected each of these proposals, and his refusal to compromise often has been attributed to stubbornness, overconfidence, or hubris. Yet an examination of the papers of Attorney General Homer S. Cummings reveals why FDR and his advisors believed that he required no fewer than six additional appointments in order to secure a liberal working majority on the Court. Those sources also help to clarify why the substitute Court bill introduced by Senate Majority Leader Joseph Robinson in July of 1937 took the form that it did, and why Robinson’s untimely death that month not only made passage of the bill impossible, but also made it unnecessary. Though Roosevelt’s refusal to compromise can be seen as more rational than is commonly thought, in retrospect one can see that his Court-packing proposal was an entirely unnecessary misadventure through which the President ultimately lost far more than he gained.

Keywords: Franklin D. Roosevelt, Court-Packing Plan, Supreme Court, Homer Cummings, Joseph Robinson, Charles Evan Hughes, Owen J. Roberts, Willis Van Devanter, George Sutherland

Suggested Citation

Cushman, Barry, Court-Packing and Compromise (September 18, 2013). CONSTITUTIONAL COMMENTARY, Vol. 29, No. 1 (2013); Notre Dame Legal Studies Paper No. 1450. Available at SSRN: https://ssrn.com/abstract=2327892

Barry Cushman (Contact Author)

Notre Dame Law School ( email )

P.O. Box 780
Notre Dame, IN 46556-0780
United States

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