"What I Said Was 'Here Is Where I Cash In'": the Instrumental Role of Congressman Hatton Sumners in the Resolution of the 1937 Court-Packing Crisis

Abstract

The New Deal had suffered a litigation problem in the last two years of President Franklin D. Roosevelt's first term: eight unconstitutionality rulings by the Supreme Court and more than 2,000 injunctions against implementation of New programs by federal officials. Roosevelt's proposed solution was to pack the Court with up to six more justices. In the legal and historical analyses of the resulting court-packing crisis, one figure has been almost completely overlooked or ignored, that of Congressman Hatton W. Sumners. He was a classic Southern Democratic congressman who expressed deep racial prejudice but who, with substantially all other Southern congressmen, joined with FDR to help create the New Deal. Sumners chaired the Judiciary Committee of the House of Representatives and worked with the President to shape and enact the New Deal, particularly its amendments to the criminal law and the federal legal system.

He is famously known for supposedly uttering the words "Boys, here's where I cash in my chips" upon departing the briefing about the packing plan that President Franklin Roosevelt conducted in the White House on February 5th. But Sumners did not speak those final two words, "my chips," and more importantly he did not desert Roosevelt, although he strongly disliked the plan. Instead, as seen through lenses of legal biography, legislative history, and political history qua legal history, he pressed to enactment his two already filed bills, one to hasten and facilitate the retirement of the superannuated justices, the Retirement Act on March 1st, and the other to mandate notice and opportunity to intervene for the Attorney General in any case in any federal court in which an issue of the constitutionality of a federal statute is raised, the Intervention Act on August 24th. These two statutes worked to solve the litigation problem of the New Deal for FDR and, moreover, have served as permanent improvements to the federal judicial system.

What Sumners meant when he remarked that he was "cash[ing] in" was that he believed he was the one to save the Court and the President from the crisis created by the court-packing plan, and he did so by means of his two bills whose enactments bookended the resolution of the crisis. Accordingly, his role was instrumental and warrants a place for him in the story of the crisis.

Keywords: Hatton W. Sumners, Court-Packing Plan, Retirement Act, Attorney General’s Standing Act

JEL Classification: K40