In 1937 President Roosevelt proposed to congress a plan to inject “new blood” into the supreme court and lower federal courts and to change procedure. For each federal judge past 70 who refused to retire, an additional judge would be appointed. If the six justices of the supreme court now. over 70 stayed on the bench, six more would be appointed, raising the tribunal’s membership from nine to 15. No federal court could a decision on constitutional questions without hearing the attorney general’s arguments.
Questions of constitutionality could be appealed direct from the lowest A, new official, the supreme federal court to the supreme court… proctor, would be named to assist the chief justice in relieving court congestion. Congress split on the plan. Administration men rallied to it and predicted quick passage. Some republicans and democrats opposed it.
He also proposed, in a special message to congress, that federal courts be denied the right to decide constitutional questions or issue injunctions involving the government without ample notice to federal authorities and the right of quick appeal directly to the supreme court. With his message, he transmitted a bill designed to carry out his recommendations, which, he said, were intended to “strengthen the administration of justice and to make it a more effective servant of the public need.” It was the first time since the chaotic early days of the first new deal that Roosevelt officially proposed a specific bill to congress. He acted swiftly after summoning his cabinet to a special emergency session.
Roosevelt proposed: 1. That he be allowed to increase the number of judges in all federal tribunals–up to 15 in the supreme court and up to 50 -where incumbents fail to retire or resign within six months of their 70th birthday. 2. That the supreme court have a $10,000-a-year proctor to act as administrative assistant and help the chief justice assign district and circuit judges to any circuit in order to relieve congestion. 3.
That congress specifically provide that no constitutional question or injunction involving the government may be decided without giving federal authorities an opportunity to be heard; and that such cases may be taken on direct and immediate appeal to the supreme court. “Aged and Infirm Judges” Boldly the president discussed the question of “aged and infirm judges” and recalled that until recently the lack of retirement provisions for life tenure federal judges gave them “no alternative except to attempt to perform the duties of their offices to the very edge of the grave.” He declared the bill raised no issue of constitutional law and would not throw from the bench any judge now in service. Six of the nine supreme court justices are now over the age limit. including Chief Justice Charles Evans Hughes, who is nearly 74. The others Justices Willis Van Devanter, nearly 77, James C. McReynolds, 75, Louis D. Brandeis, 80, George Sutherland, nearly 75, and Pierce Butler, nearly 71. All but Brandeis were members of that conservative bloc on the court which had struck down some of the new deal’s major laws. Whether by accident or design, six is the precise number of new supreme court justices Roosevelt could appoint if his bill were enacted. If, however, the six chose to retire he could appoint new justices but could not increase the size of the court.
Thus “over age” justices who oppose increase in the number of supreme court justices would have no alternative but to retire.
Sides were drawn and debate was heated. One example of those in favor of the move was Wisconsin Governor Robert M. La Follette Jr who gave an address on February 27, 1937. The address was carried nationwide over the Blue Network of NBC. The broadcast begins with a bulletin regarding the rescue of explorer J.G. LeVan in the jungles of British Guiana who had been lost for several days while on an expedition.
