Sen. Warren Austin (R-Vt.)

Senator Warren Austin (R-VT.) - one of the voices objecting to the FDR Judicial plan.

March 25, 1937 – Sen. Warren Austin – Senate Hearings On Supreme Court Restructuring – Past Daily Reference Room.

Sen. Warren Austin (R-Vt.)
Senator Warren Austin (R-VT.) – one of the voices objecting to the FDR Judicial plan.
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Sen. Warren Austin – Senate Committee Hearings on Supreme Court Restructuring – March 25, 1937 – Gordon Skene Sound Collection –

March 23, 1937 – Senator Warren Austin (R-Vt.) offers an opinion on President Roosevelt’s plan to expand the Supreme Court from nine to thirteen Judges.

The Judicial Procedures Reform Bill of 1937, frequently called the “court-packing plan”, was a legislative initiative proposed by U.S. President Franklin D. Roosevelt to add more justices to the U.S. Supreme Court in order to obtain favorable rulings regarding New Deal legislation that the Court had ruled unconstitutional. The central provision of the bill would have granted the president power to appoint an additional justice to the U.S. Supreme Court, up to a maximum of six, for every member of the court over the age of 70 years and 6 months.

The flurry of new laws in the wake of Roosevelt’s first hundred days swamped the Justice Department with more responsibilities than it could manage. Many Justice Department lawyers were ideologically opposed to the New Deal and failed to influence either the drafting or review of much of the White House’s New Deal legislation. The ensuing struggle over ideological identity increased the ineffectiveness of the Justice Department. As Interior Secretary Harold Ickes complained, Attorney General Homer Cummings had “simply loaded it [the Justice Department] with political appointees” at a time when it would be responsible for litigating the flood of cases arising from New Deal legal challenges.

Compounding matters, Roosevelt’s congenial Solicitor General, James Crawford Biggs (a patronage appointment chosen by Cummings), proved to be an ineffective advocate for the legislative initiatives of the New Deal. While Biggs resigned in early 1935, his successor Stanley Forman Reed proved to be little better.

This disarray at the Justice Department meant that the government’s lawyers often failed to foster viable test cases and arguments for their defense, subsequently handicapping them before the courts. As Chief Justice Charles Evans Hughes would later note, it was because much of the New Deal legislation was so poorly drafted and defended that the court did not uphold it.

After the proposed legislation was announced, public reaction was split. Since the Supreme Court was generally conflated with the U.S. Constitution itself, the proposal to change the Court brushed up against this wider public reverence. Roosevelt’s personal involvement in selling the plan managed to mitigate this hostility. In a Democratic Victory Dinner speech on March 4, Roosevelt called for party loyalists to support his plan.

Roosevelt followed this up with his ninth Fireside chat on March 9, in which he made his case directly to the public. In his address, Roosevelt decried the Supreme Court’s majority for “reading into the Constitution words and implications which are not there, and which were never intended to be there”. He also argued directly that the Bill was needed to overcome the Supreme Court’s opposition to the New Deal, stating that the nation had reached a point where it “must take action to save the Constitution from the Court, and the Court from itself”.

The administration began making its case for the bill before the Senate Judiciary Committee on March 10, 1937. Attorney General Cummings’ testimony was grounded on four basic complaints:

1. The reckless use of injunctions by the courts to pre-empt the operation of New Deal legislation;
2. Aged and infirm judges who declined to retire;
3. Crowded dockets at all levels of the federal court system; and
4. The need for a reform which would infuse “new blood” in the federal court system.

Administration advisor Robert H. Jackson testified next, attacking the Supreme Court’s alleged misuse of judicial review and the ideological perspective of the majority.[70] Further administration witnesses were grilled by the committee, so much so that after two weeks less than half the administration’s witnesses had been called. Exasperated by the stall tactics they were meeting on the committee, administration officials decided to call no further witnesses; it later proved to be a tactical blunder, allowing the opposition to indefinitely drag-on the committee hearings.Further setbacks for the administration occurred in the failure of farm and labor interests to align with the administration.

In opposition to the plan, Senator Warren Austin delivered this address on March 25, 1937, as broadcast over the Red Network of NBC.

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