The Judicial Reforms of 1937

William & Mary L. Rev., Vol. 61, 2020, Forthcoming

Notre Dame Legal Studies Paper No. 1939

59 Pages Posted: 5 Jun 2019 Last revised: 20 Jun 2019

Date Written: May 16, 2019

Abstract

The literature on reform of the federal courts in 1937 understandably focuses on the history and consequences of President Franklin D. Roosevelt’s ill-fated proposal to increase the membership of the Supreme Court. A series of decisions declaring various components of the New Deal unconstitutional had persuaded Roosevelt and some of his advisors that the best way out of the impasse was to enlarge the number of justiceships and to appoint to the new positions jurists who would be “dependable” supporters of the Administration’s program. Yet Roosevelt and congressional Democrats also were deeply troubled by what they perceived as judicial obstruction in the lower federal courts. The national/nationwide/universal injunction had yet to emerge, but friends of the Administration nevertheless maintained that injunctive relief granted by the lower courts was substantially and in some cases decisively frustrating implementation of vital elements of the New Deal agenda. This contribution to the William & Mary Institute of Bill of Rights Law symposium on "The Role of Courts in Politically Charged Moments" surveys the uses and perceived effects of such injunctive relief, and relates the story of efforts by the political branches to address this challenge through 1) enlargement of the lower federal judiciary, and 2) reforms to judicial procedure and/or jurisdiction that would inhibit the power of lower federal courts to thwart implementation of federal programs. The principal solution at which they arrived, which required among other things that only three-judge district court panels be authorized to enjoin the enforcement of federal law, remained in force for nearly forty years before it was repealed in 1976 – ironically, one might think, just as the national/nationwide/universal injunction was emerging as a phenomenon, and the stakes of a single judge having power to grant injunctive relief accordingly were becoming considerably elevated.

Keywords: New Deal, Injunctions, Judicial Appointments, Three-Judge Panel, Judicial Procedure, Federal Jurisdiction, Federal Courts

Suggested Citation

Cushman, Barry, The Judicial Reforms of 1937 (May 16, 2019). William & Mary L. Rev., Vol. 61, 2020, Forthcoming; Notre Dame Legal Studies Paper No. 1939. Available at SSRN: https://ssrn.com/abstract=3389453

Barry Cushman (Contact Author)

Notre Dame Law School ( email )

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

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