"Texas Democrats and the Court Fight of 1937"


On several occasions in the twentieth century, Americans presidents, fresh from overwhelming electoral triumphs in which they supposedly received a mandate from the people, have miscalculated the prevailing public mood and suffered grievous political losses as a result. The first of these was Franklin Roosevelt.

As 1937 began, FDR seemed to be at the absolute pinnacle of power. Over the preceding four years he had dominated deliberations of Congress as no chief executive before had ever done. The result was a reworking of American government with the enactment of both the first and second New Deals. He had also remade the Democratic party, forging a new coalition of interests and voter blocs which returned the party of Jackson, Cleveland, and Wilson to dominance for the first time since the 1850s. Standing for a second term in 1936, Roosevelt had stated that the only real issue before voters was the New Deal. Did Americans want to follow the new path he had laid out or return to the smaller, less active and more conservative alternative of the Republican party they had rejected in 1932? In what amounted to a national plebiscite, Roosevelt won sixty-one percent of the popular vote and all but two states in the Electoral College.

Almost immediately, however, he miscalculated on a monumental scale with his proposal to reorganize the Supreme Court, which had become an institutional threat to the New Deal. The Court Fight, lasting almost six months during which the nation's attention was riveted on this battle between branches of the federal government, dealt his second administration a near fatal blow and marked the beginning of the end for the domestic revolution over which he had presided.


I. The Threat Posed by the Supreme Court to FDR and the New Deal

By 1935, the Court was controlled by reactionarily conservative justices aided on most occasions by the swing votes of Justices Charles Evans Hughes and Owen Roberts. The Court was composed of three distinct blocs:

Louis D. Brandeis (appointed by President Wilson), Benjamin N. Cardozo (appointed by President Hoover), Harlan Fisk Stone (appointed by President Coolidge) James C. McReynolds (appointed by President Wilson), Pierce Butler (appointed by President Harding), Willis J. Van Devanter (appointed by President Taft), George Sutherland (appointed by President Harding) Charles Evans Hughes (appointed by President Taft), Owen Roberts (appointed by President Hoover) It's important to remember that all of these appointees came from an earlier era of American politics, before the incredible expansion of the federal government in response to the Great Depression. From strictly a partisan perspective, seven of the nine justices had been appointed by Republican presidents.

By 1935 Chief Justice Charles Evans Hughes and Justice Owen Roberts began siding with the conservative bloc of judges to represent an institutional challenge to the First New Deal that had been enacted between 1933 and 1934.

In 1935-36, the Court began to invalidate important elements of the First New Deal. Among the most important decisions rendered involved the two major programs Roosevelt had launched to engineer economic recovery - the National Recovery Administration and the Agricultural Adjustment Act.

The Court which had struck down so much of the First New Deal also represented a looming threat to the measures which Congress had passed in 1935-36. Legal challenges to such important Second New Deal measures as the Wagner Labor Relations Act, Social Security, and minimum wage legislation were scheduled to be decided by the court during its 1937 term. Given the makeup of the court, Roosevelt's prospects were not good.

Furthermore, President Roosevelt understood that unless he did something to alter the voting behavior of the court, it stood as an institutional threat to anything he might attempt to do during his second term of office.

Roosevelt's anger was heightened by the fact that he had yet to have the opportunity to make an appointment to the court and some of the justices seemed determined to serve until he was no longer in office. He would thus be denied the opportunity to ever appoint justices to the court and thereby have a long-lasting effect on the judiciary.

II. Roosevelt's "Court Packing" Plan and Grievous Initial Mistakes

President Roosevelt's judicial reorganization proposal to Congress would alter existing law to allow all federal judges, including the justices of the high court, to retire at age seventy with full pay. The proposal, however, stipulated that for every sitting justice seventy years of age or older who chose not to retire, the president would be authorized to appoint an additional justice to the court with a maximum limit of fifteen on the bench at any one time. The Supreme Court had been invalidating New Deal measures by vote splits of either 6-3 or 5-4. Given the fact that six of the incumbent justices on the Hughes court were seventy or older, FDR would be authorized to appoint six additional justices if the reorganization bill passed Congress. Roosevelt simply took for granted that it would, given his past success with that body. His six new appointees would be carefully chosen for their activist tendencies and past support of the New Deal. The Court would thereby be converted from one critical of Roosevelt's domestic program to a body which would comfortably support the New Deal by vote splits of either 9-6 or 10-5. The Court could thus be forced to accept the mandate of the American people as expressed in the elections of 1932 and 1936 and Congress' enactment of the New Deal. However, the president who had so masterfully exploited the political environment at the depths of the depression to remake American government now overstepped himself, committing several critical mistakes in his effort to deal with the judicial threat.

President Roosevelt apparently misread and grossly exaggerated the peoples' mandate as expressed in the 1936 election results. Or he felt, given his mastery of Congress over the preceding four years, that congressional passage of his proposal was a foregone conclusion. Whatever the reason, Roosevelt didn't consult with congressional leaders who'd be called upon to pass it. This enraged many important congressmen who'd been generally supportive of the president up to this point in time. Now they felt personally taken for granted and that the institution of Congress had been insulted.

The president also erred in framing the battle against the court as an effort to help out the "nine old men" who, according to Roosevelt, had fallen hopelessly behind in their workload. This notion was easily dispelled by the justices who while older were nonetheless vigorous and current in their deliberations. President Roosevelt never openly admitted that what he really wanted to do was change the court's voting behavior to make it reflect the governmental changes engineered and endorsed by the people and Congress. Roosevelt's method for dealing with the high court let people wonder whether or not the president really coveted dictatorial power and control.

III.The Reaction of Important Texas Democrats

John Nance Garner, a crusty Texan from Uvalde, was in some ways an unlikely running mate for Franklin Roosevelt in 1932. Inherently more conservative philosophically than FDR, he nonetheless provided invaluable service to the president between 1933 and 1938. Garner was chosen to serve as FDR's liaison with Congress because he had over thirty years of legislative service, was very persuasive, had friends throughout the body, and had special influence with the powerful Texas delegation which chaired no less than nine important committees through which Roosevelt legislation to deal with the Depression would have to pass.

Though ill at ease with some of the First New Deal because of his basic conservative views, Garner nonetheless skillfully pushed these same measures through Congress. He believed that such measures were important to the country given the emergency conditions which prevailed and felt as well a great deal of loyalty to the Democratic party and to the man who'd chosen him to serve such an important role. In 1934 after the dazzling successes of the "Hundred Days," Garner began advising the president that it was time to slow down and to consolidate. Instead, FDR charged forward with the Second New Deal which Garner dutifully supported in public though in private he refered to some of it as "plain damn foolishness." The breaking point came in 1937 over massive spending, the president's patience with sit-down strikes, and finally the court reorganization bill.

Of the court bill, Garner later wrote: "The first time I ever heard of the bill or that Joe Robinson (Senate Majority Leader) or any of the others heard of it was when the President and Attorney General Cummings read it to us in the President's office. It was all drawn to the last detail and ready for Congress." "We were so stunned we hardly spoke."

Several days later Garner and several party leaders met with Roosevelt warning of trouble ahead and suggesting a possible compromise. FDR laughed it off, said everything would be all right, and assigned Garner the task of guiding the bill through Congress as he had so many others. Garner, however, wouldn't shepherd this bill. In fact, he took an active role in the proposal's defeat.

Garner - with an obvious lack of enthusiasm - publicly supported the plan and denied rumors of a split with Roosevelt. This was simply show. When the bill was first read in the Senate when officially introduced, Garner stepped down from the rostrum "holding his nose, making a thumbs down gesture." More importantly, Garner never threw his considerable talents and power into the fight for the president's plan.

Indeed, he did the opposite. Behind the scenes, the vice president covertly rallied and encouraged the opposition. The coalition Garner helped create to defeat the court bill ended up becoming a permanent phenomenon. The coalition between Republicans and conservative Southern Democrats killed the court scheme and then blocked future Roosevelt proposals involving the Depression conservatives deemed too liberal. The Conservative Congressional Coalition survives to this day.

Garner's opposition to the court bill ended the working relationship between president and vice president. After one meeting with Roosevelt in 1938, Garner, absolutely exasperated, reputedly said: "We've been trying this New Deal spending orgy for six years, and where has it gotten us? I for one refuse to support more reckless spending. It's got to stop!" Roosevelt and Garner had their last personal conversation in December, 1938. For the last two years of their administration, the break between the two was so irreconcilable that they wouldn't even speak to one another.

Congressman Hatton Sumners, an old-line Democrat from Dallas who had voted for much of the New Deal out of party loyalty despite conservative misgivings, did probably more than any other single individual to kill the president's court bill. This was due to his chairmanship of the House Judiciary Committee, which would hold hearings on the bill and would have to discharge the proposal before it could be taken up on the floor of the House of Representatives.

Sumners, like Garner, heard about the bill on February 5 in the same meeting with FDR and Cummings. He was as shocked as Garner and took even more direct action. After the meeting Sumners was reported to have said: "Boys, here's where I cash in." According to Lionel Patenaude, "cash in" meant "Sumners' willingness to sacrifice his political future for principle. In other words, he could not support the administration and had to risk the consequences."

Sumners immediately decided that the bill would never be reported out of his committee and therefore couldn't be voted upon by the entire House. In the 1930s, chairs absolutely dominated their committees and their power was almost unassailable. Sumners' decision was perhaps a mortal blow. Every indication seems to point to the conclusion that had the House debated and voted on the proposal early on, it would have passed and the bill might have gained unstoppable momentum. Blocked by Sumners, President Roosevelt had to bring up the bill first in the Senate, where his power was not as great.

While a poll of Texans by the Institute of Public Opinion revealed support for the president's proposal by a nearly two-to-one margin, Sumners wasn't going to budge. As he later wrote, "I didn't care what the people in my district thought, I wasn't going to let that bill pass." Sumners traveled around the country arguing against the proposal and chiding citizens for their hero-worship of Roosevelt. The congressman from Dallas, convinced that this was an unconstitutional grab for power, used his power as chairman of the House Judiciary Committee to kill the scheme. "No House bill was ever reported out of his committee."

Yet another Texan played a prominent role in killing the president's court packing scheme. Tom Connally, a member of the Senate Judiciary Committee, had supported Roosevelt on a number of his New Deal programs but felt this was unconstitutional and said so loudly and repeatedly. His address to the Texas legislature on March 2 announcing his opposition found a receptive audience and helped lead to the Texas Senate's denunciation of the bill shortly thereafter. Said Connally, "...I am a devoted, personal friend of the President of the United States. If this were a matter of personal friendship, I should be standing beside the President. But this question is so fundamental that it transcends personal friendship. To support it would violate my superior obligation to the Constitution of the United States."

"Some of those who favor the proposal baldly declare that their real purpose is to put on six new judges with preconceived opinions about certain questions that now are pending before the court. Their plan is to change the complexion of the court in the middle of the game, while the players are on the field, and thus reverse the policy of the Supreme Court.

If that be their purpose, they would absolutely undermine and destroy the independence of the court. I want a Supreme Court owing no hope of reward and feeling no threat from Congress, or falling under the control of anybody except its own conscience, integrity, and learning.

Let some reactionary administration come to power and it would immediately say: ėThe Democrats stacked the court, and now we have as much right to restack as they had. We will thereby add enough judges so that we will have a responsive court, a court that will do the bidding of this reactionary administration and repeal all the liberal laws placed on the statute books by the Democrats."

Connally and others in the opposition played for time. He later wrote: "We knew we had the advantage in a long drawn-out fight. Since Roosevelt was so popular throughout the country, we assumed that the first reaction of the nation would be to favor his bill. Our job was to prolong the committee hearings until we could sell our case to the country and the Senate."

The Senate Judiciary Committee, chaired by Henry F. Ashurst of Arizona and an opponent, did just that by conducting protracted hearings in which a total of eighty-four witnesses appeared and over a million words of testimony were given. Senator Connally "was sympathetic to those who opposed Roosevelt's plan and critical of those who favored the measure." Connally was particularly brutal in his questioning of Attorney General Cummings, who had written the proposal at Roosevelt's behest. During the passing months, opposition to the president's proposal built. In May the committee voted 10-8 that the bill should not become law and issued a report in June that savagely denounced the proposal.

IV. The Split In The Democratic Party

It's important to remember that the telling blow to FDR's court reorganization bill was not the opposition of Republicans but the abandonment of the president by conservative Southerners of his own political party. The Democratic party by the 1930s was a hodgepodge coalition of many diverse and often conflicting elements. During the Twenties the party was beset by a sectional rift between white Anglo-Saxon Protestant conservatives in the rural agricultural South and more liberal "new immigrant" voters in the urban industrial Northeast. This rift had crippled the party in the 1924 and 1928 elections. The coalition functioned more smoothly in 1932 and 1936 because the Depression environment forced the factions to work together to keep the White House out of Republican hands.

Nonetheless, many Southern Democrats - not just Garner, Sumners, and Connally - were becoming increasingly uneasy about the direction of the New Deal by 1937. They had supported the New Deal in 1933-34 when it appeared the only alternative to revolution in the streets because of the depressed economic environment. By 1936 they were increasingly ill at ease with continued massive spending and deficit financing. Their traditional conservative ideology based upon the tenets of Jacksonian Democracy was reasserting itself because they believed the worst of the Depression had passed. They feared that President Roosevelt would eventually propose sweeping civil rights legislation and they were concerned about his seeming antibusiness, pro-labor union stances. Given this apprehension, Southern Democrats revolted when FDR attempted to pack the court. Roosevelt lost control of the party in 1937 and the New Deal was never the same.

V. Reasons For The Defeat of the Court Bill

In early August, knowing he was blocked in both the House of Representatives and the Senate and that his bill was most certainly dead, President Roosevelt accepted a lame excuse for a face-saving compromise that provided better retirement provisions for justices and lower court federal judges. This, FDR asserted, would speed up the judicial process. The enlargement of the court never occurred. Roosevelt was faced with a humiliating and costly loss. How had this supposedly invulnerable all-powerful executive lost so badly?

First, the court easily demonstrated that it hadn't fallen behind in its workload and that the justices were vigorous and anything but adelpated by senility as Roosevelt wanted people to believe. Secondly, Justices Hughes and Roberts shifted sides, abandoning the reactionarily conservative bloc during the court fight and joined the moderate or liberal block in upholding the constitutionality of the Wagner Labor Relations Act, Social Security, and minimum wage legislation. This was crucial. Roosevelt and his advisors were counting on the justices to provide the push necessary to pack the court by striking down more and more of the New Deal in its Spring, 1937 term. This would have created a firestorm of criticism of an obstructionist tribunal out of step with the rest of the nation. The court did just the opposite. Reacting to the outcome of the 1936 national elections, Hughes and Roberts joined the moderate faction in upholding the three Roosevelt programs. This reduced the vulnerability of the court by lessening its reactionary image. In more and more people's opinion, there was no need to pack the court; it had gotten the message and would no longer be an institutional roadblock to the New Deal.

Also pivotal in the defeat of the court proposal was Justice Willis Van Devanter's decision to resign. This was done in consultation with Senators Burton K. Wheeler and William Borah who believed it would deal a death blow to Roosevelt's hopes of packing the court. If the president were given one appointment, Wheeler and Borah were convinced, the public would see no need to enlarge the court given that body's changed voting behavior towards the New Deal. Exactly that happened.


While FDR won the war with the "nine old men" in the long run by outlasting them and filling seven vacancies on the court between 1937 and 1941, he lost the battle and he lost big. The New Deal was dying. FDR had lost control of his own party. He was permanently blocked in Congress by the new conservative coalition that John Nance Garner had crafted. This politically astute president had very clearly committed a massive blunder and his mastery of the political system would never again be the same.


All quotations are from Lionel V. Patenaude's Texas, Politics and the New Deal, Garland Publishing (New York, 1983)

© L. Patrick Hughes, 1999