Constitutional Issues - Separation of Powers

Background

It is safe to say that a respect for the principle of separation of powers is deeply ingrained in every American. The nation subscribes to the original premise of the framers of the Constitution that the way to safeguard against tyranny is to separate the powers of government among three branches so that each branch checks the other two. Even when this system thwarts the public will and paralyzes the processes of government, Americans have rallied to its defense.

At no time in this century was the devotion to that principle more vigorously evoked than in 1937, when Franklin Roosevelt introduced a plan to increase the number of Justices on the Supreme Court. The conflict set off by the President's plan is more understandable when viewed in the historical context of expanding judicial power as well as in the contemporary context of pro- and anti-New Deal politics.

In the early national period, the judiciary was the weakest of the three branches of government. When Chief Justice John Marshall established the principle of judicial review in MarburyMadison by declaring an act of Congress unconstitutional, he greatly strengthened the judiciary. Even though the high court exercised this prerogative only one other time prior to the Civil War (Dred Scott v. Sanford), the establishment of judicial review made the judiciary more of an equal player with the executive and legislative branches.

After the Civil War, the Court entered a phase of judicial activism based on a conservative political outlook that further enhanced its own power. In accepting the view that the 14th amendment should be interpreted to protect corporations, the Court struck down laws that protected workers, such as minimum wage laws and laws prohibiting child labor. Critics of the Court's stand, including Justice Oliver Wendell Holmes, argued that these decisions were not based on the Constitution but upon the laissez-faire theory of economics. By 1937 the Court was widely regarded by the public as an enemy of working people.

This sentiment was exacerbated by the Great Depression. In 1935-36, the Court struck down eight of FDR's New Deal programs, including the National Recovery Act (NRA) and the Agricultural Adjustment Act (AAA). Public antijudicial sentiment intensified; many critics questioned the constitutionality of the concept of judicial review itself. As a result of this reaction, several constitutional amendments were introduced into Congress in 1936, including one that would require a two-thirds vote of the Court whenever an act of Congress was declared unconstitutional; another that would permit Congress to revalidate federal laws previously declared unconstitutional by repassing them with a two-thirds vote of both houses, and even one that would abolish altogether the Court's power to declare federal laws unconstitutional.

FDR remained silent, hoping that the antijudicial public sentiment would continue to grow without his having to enter the fray. He avoided any direct references to the Court in the 1936 election campaign. After his election victory, however, he submitted to Congress early in February 1937 a plan for "judicial reform," which forever came to be known as his attempt to "pack" the Supreme Court. Given Roosevelt's record for legislative success, it is interesting to discover why this plan to reconstitute the Court with Justices more favorable to the New Deal backfired.

Franklin Roosevelt and his Attorney General, Homer Cummings, had considered several options. They could have attacked the issue of judicial review head on, as Congress's proposed amendments had sought to do, but they chose not to, perhaps anticipating the public's attachment to the idea of the judiciary as the guardian of the Constitution. Instead, they chose to change the number of Justices on the Court, which had been done six times since 1789. Their plan had a different twist, however, for it proposed adding a justice for every justice over the age of 70 who refused to retire, up to a maximum of 15 total.

This proposal was all the more appealing because Justice Department lawyers had discovered that the very same idea had been proposed by Justice James C. McReynolds, one of the most conservative justices then sitting on the Court, when he had been Wilson's Attorney General in 1913. The administration could not resist the appeal of such irony, and without consulting Congress, the President and his New Deal aides blundered into one of the biggest political miscalculations of their tenure. By masking their true intentions, they created a split within their own party from which they never fully recovered.

It was expected that the Republicans would cry foul, but when the chairman of the House Judiciary Committee, Democrat Hatton Sumners of Texas, announced his opposition, the plan was as good as dead. Further resistance to the plan developed in Congress as the Court began a reversal of its previous conservative course by ruling in favor of such legislation as then National Labor Relations Act and the Social Security Act. Congressmen urged the White House to withdraw the bill, but confident of victory, FDR refused to back down. The cost was the alienation of conservative Democrats and the loss of the fight in Congress.

Letters poured into the White House and the Justice Department both attacking and supporting the President's plan. Many of the letters of support came from ordinary citizens who had worked in industries hurt by the Great Depression. The Worker's Alliance of Kalispell, MT, wrote, "We consider that Recovery has been delayed materially by the dilatory action of the Supreme Court. . . . An immediate curb on the Supreme Court is of utmost importance, then an amendment to put it in its proper place would be well and good." But others, most notably the legal establishment and the press, thought that the Supreme Court was already "in its proper place."

One of the most outspoken members of the press was the Rochester, NY, newspaper publisher, Frank Gannett. Our study document (99K JPEG) is a letter sent by Gannett to the Office of the Solicitor in the Justice Department and then referred to the Attorney General. Like many others in the file, it expresses the concern that the real issue is not judicial reform but the continued expansion of executive power. {A text version of study document is available.}

Even those who trusted Roosevelt, and who believed in what the New Deal was trying to accomplish, were wary. The following excerpt from a telegram to President Roosevelt is typical.

Please watch your step while attempting to curb the powers of the honorable Supreme Court of the United States. Such action may be in order while so able a person as your excellency may remain in the president's chair but please let us look to the future when it might be in order for the citizenship of our great country to look to the Supreme Court for guidance which we might justly require.

This month's document and the others quoted here can be found in the records of the Justice Department, Record Group 60: Correspondence of the Attorney General, case file 235868.

The Document

Statement by
Frank E. Gannett

Click to Enlarge

Read Transcript

National Archives and Records Administration
Records of the Justice Department
Record Group 60

Article Citation

Gray, Leslie and Wynell Burroughs. "Constitutional Issues: Seperation of Powers." Social Education 51, 1 (January 1987): 28-30.