Roosevelt's 1937 Court-Packing Plan and the Lesson Both Parties Took From It

Elsie Parrish cleaned rooms at the Cascadian Hotel in Wenatchee, Washington, a town known for its apples. When her job ended, she asked to be paid what Washington's minimum wage law said a woman in her work was owed, and the hotel paid her less. Her claim came to a few hundred dollars. Her lawsuit reached the Supreme Court at the most dangerous moment in that institution's modern history, when a president fresh off a landslide re-election had just asked Congress to add as many as six new justices. The Court's decision in her case, announced in March 1937, has gone down in legend as the moment the Court bent rather than broke. The real story is messier, and its lessons have shaped how both parties think about the Court for nearly ninety years.

In short: In February 1937, Franklin Roosevelt proposed adding a justice for every sitting justice over 70, up to six. The plan died in the Senate that summer, but the Court had already begun upholding New Deal laws, starting with West Coast Hotel v. Parrish. Democrats learned to fear court expansion; Republicans learned that the long game of appointments works. Reformers today need to understand both lessons.

A Court at war with the New Deal

By the mid-1930s, the Supreme Court had become the main obstacle to Roosevelt's response to the Depression. In 1935 it struck down the National Industrial Recovery Act in the Schechter Poultry case, a unanimous ruling about chicken wholesalers in Brooklyn that went far beyond chickens. In early 1936 it struck down the Agricultural Adjustment Act's processing tax. In June 1936, in Morehead v. New York ex rel. Tipaldo, a 5-4 majority struck down New York's minimum wage law for women, relying on a 1923 precedent, Adkins v. Children's Hospital, that treated wage laws as interference with freedom of contract.

The Tipaldo ruling was a political disaster for the Court. Even many Republicans had supported state minimum wage laws, and the decision seemed to leave neither the federal government nor the states able to set a wage floor. Roosevelt complained that the Court had created a "no-man's land" where no government could act. He won re-election in November 1936 by one of the widest margins in American history, carrying every state but Maine and Vermont, with large Democratic majorities in both houses of Congress.

The nine justices included four reliable conservatives, often called the Four Horsemen, three liberals, and two swing votes: Chief Justice Charles Evans Hughes and Justice Owen Roberts. Several were in their seventies. None had retired during Roosevelt's first term, so he had appointed no one.

The plan itself

On February 5, 1937, Roosevelt sent Congress a proposal for judicial reorganization. It did not mention ideology. Instead it presented itself as an efficiency measure: the federal courts were overburdened, the argument went, and aging judges needed help. For each federal judge who had served ten years and did not retire within six months of turning 70, the president could appoint an additional judge. For the Supreme Court, the plan would allow up to six new justices, bringing the total to fifteen.

The framing was a mistake, and almost everyone recognized it. Six of the justices were over 70, which meant the plan's arithmetic pointed straight at the Court's conservative majority. Critics accused the president of disguising a political purpose as a housekeeping one. Chief Justice Hughes dealt the efficiency argument a heavy blow with a letter to Senator Burton Wheeler, a progressive Democrat from Montana who led the opposition, stating that the Court was fully up to date with its work.

In a fireside chat on March 9, Roosevelt changed course and made the honest argument: the Court had become a policy-making body that was blocking the will of the people, and the country needed justices who would read the Constitution as a living document able to meet modern needs. That was a better case. It came too late to undo the first impression.

The switch, and why it happened earlier than it looked

On March 29, 1937, the Court decided West Coast Hotel v. Parrish. By a 5-4 vote, it upheld Washington's minimum wage law and overruled Adkins. Hughes wrote for the majority. The swing vote was Owen Roberts, who had joined the majority against New York's law less than a year earlier.

Journalists quickly coined the phrase "the switch in time that saved nine," implying that Roberts had folded under the threat of court-packing. Two weeks later, in NLRB v. Jones and Laughlin Steel, the Court upheld the National Labor Relations Act by the same 5-4 margin. In May, it upheld the Social Security Act. The constitutional revolution seemed to have arrived on cue.

The chronology complicates the legend. The Court had heard argument in Parrish in December 1936, and the justices had voted on it in conference before Roosevelt announced his plan. Roberts's vote to uphold the law was cast before anyone outside the White House knew a court-packing proposal was coming; the announcement was delayed because one justice was ill and the Court waited to have a full bench. Roberts himself later explained that he had distinguished Tipaldo on narrow procedural grounds, because New York had not asked the Court to overrule Adkins. Historians still argue about how much the election, public pressure and changing legal thought influenced the justices. But the simple story of a judge caving to a threat does not fit the dates.

There is a quieter lesson in the timing, too. Courts are made of people who read newspapers, watch elections and absorb the arguments of their era. Roberts and Hughes did not need a bill in Congress to notice that the country had voted overwhelmingly for a government that could act on the economy. The pressure on the Court in 1937 came less from Roosevelt's plan than from the accumulated weight of the Depression, the 1936 landslide and a legal profession increasingly persuaded that the old doctrines no longer fit an industrial nation.

What the switch did do was drain the plan of urgency. If the Court was already upholding New Deal laws, why take the risk?

The Senate kills the bill

The fight in Congress went badly for the president from the start. Conservative Democrats from the South opposed the plan, but so did progressive Democrats and independents who worried about concentrating power in one man's hands, especially as dictatorships were rising in Europe. Wheeler, a longtime ally of labor, became the plan's most effective opponent.

In May, Justice Willis Van Devanter, one of the Four Horsemen, announced his retirement, giving Roosevelt his first appointment. In June, the Senate Judiciary Committee, controlled by Democrats, issued a report condemning the bill in harsh terms and recommending that it be rejected. Senate Majority Leader Joseph Robinson of Arkansas, who had been leading the fight for a compromise version, died suddenly in July. On July 22, 1937, the Senate voted 70 to 20 to send the bill back to committee, which ended it.

Roosevelt had lost the battle. He arguably won the war: within a few years, deaths and retirements gave him appointments that remade the Court, which went on to uphold the New Deal and much more. But the fight split the Democratic coalition, and the party lost seats in the 1938 midterms. The president's later attempt to defeat conservative Democrats in primaries largely failed.

What the New Deal Court went on to build

It is easy to tell the 1937 story as a defeat for Roosevelt and stop there. The longer view looks different. Between 1937 and the early 1940s, the president appointed a remarkable run of justices: Hugo Black, Stanley Reed, Felix Frankfurter, William O. Douglas, Frank Murphy, James Byrnes, Robert Jackson and Wiley Rutledge, and he elevated Harlan Fiske Stone to Chief Justice. By the time the United States entered the Second World War, the Court that had fought the New Deal was gone.

The new Court did more than leave New Deal statutes alone. It rebuilt constitutional doctrine. In United States v. Darby in 1941, it upheld the Fair Labor Standards Act, which set a federal minimum wage and limited child labor, and overruled an earlier decision that had struck down a federal child labor law. In Wickard v. Filburn in 1942, it read Congress's commerce power broadly enough to reach a single farmer's wheat. Economic regulation would, from then on, receive deferential review from the courts, and the "freedom of contract" doctrine that had sunk minimum wage laws faded away.

There was a famous footnote in that shift. In United States v. Carolene Products in 1938, a case about filled milk, Justice Stone suggested in footnote four that courts might apply closer scrutiny to laws that restrict the political process or target "discrete and insular minorities." That short paragraph laid groundwork for the civil rights jurisprudence of later decades. The Court would step back on economic policy and step forward on rights.

That combination, deference to democratic majorities on economics and protection for those who cannot protect themselves through ordinary politics, is the closest thing progressives have to a theory of judicial review. It came out of the wreckage of 1937. The plan failed; the idea behind it, that the Court should not stand in the way of a democratic economy, won.

The lesson Democrats took

For Democrats, 1937 became a cautionary tale passed down for generations: even a popular president with enormous majorities could not change the size of the Court, and trying could wreck his agenda. That memory explains why, for decades, mainstream Democrats treated court expansion as off the table, and why proposals to add seats are still met with nervousness by party leaders.

The Court's size, it is worth remembering, is set by statute, not by the Constitution. Congress changed it several times in the nineteenth century, often for political reasons, before settling on nine in 1869. The number has held since then, partly because 1937 made the norm feel unbreakable.

When progressives revived the idea of adding seats after 2020, they ran into the 1937 memory. Opponents called it court-packing, a phrase carrying Roosevelt's defeat inside it. Joe Biden, as a candidate and as president, avoided endorsing expansion and instead appointed a commission to study it.

The lesson Republicans took

The conservative legal movement absorbed a different lesson: you do not need to change the size of the Court if you change who sits on it, and you can do that patiently. Over decades, organizations built pipelines for judicial nominees, vetted candidates for ideological reliability and made judicial appointments central to presidential campaigns.

The approach was aggressive in its own ways. In 2016, Senate Republicans declined to hold hearings for Merrick Garland, nominated after Justice Antonin Scalia's death, arguing that the next president should fill the seat. In 2020, the same majority confirmed Amy Coney Barrett days before a presidential election, after Justice Ruth Bader Ginsburg's death. Those choices were legal under Senate rules. They also showed that a determined majority could reshape the Court without touching its size.

Here, I think, is the honest assessment: both parties took their lessons from 1937, and only one used the lesson as a strategy. Democrats learned what not to do. Republicans learned what to do instead.

What reformers should take from it now

The strongest objection to court expansion is a serious one. If one party adds seats when it has the power, the other party will add seats when its turn comes, and the Court becomes an extension of whoever won the last election. That spiral would destroy the very independence that makes a court worth having. Progressives should take that argument seriously, because the logic does not care which side starts.

But 1937 suggests a second lesson that the cautionary tale tends to leave out. Roosevelt's plan failed partly because it was dishonest about its purpose. When he finally argued on the merits, he made a strong case. Reformers today have the chance to avoid his mistake by being clear about what they want and why.

Many reformers have shifted their focus from adding seats to changing the rules of the institution: staggered eighteen-year terms so every president gets the same number of appointments, a binding ethics code, and more transparency about the emergency docket. Those proposals answer the escalation problem directly, because they would apply to whichever party holds power. They are also proposals that could, in principle, attract support across party lines, the way judicial term limits have drawn interest from conservative and liberal scholars alike.

Elsie Parrish had wanted only what the law promised her for scrubbing floors and making beds. She ended up helping close an era in constitutional law. The lesson from her story might be the simplest: the Court responds, eventually, to the country. The work is making sure the country tells it something clear.

What you can do

1. Follow the Court's rulings directly. The Court Watch page lists this term's Supreme Court opinions with the Court's summaries, its emergency docket and the Senate's votes on judges.
2. Read the reform debate. The court reform coverage gathers reporting on term limits, expansion, ethics and other proposals, with the arguments on each side.
3. Let your senators know your view. Because the Senate confirms justices and would vote on any change to the Court, contact matters. Use the representatives page to find your senators and House member, their phone numbers and contact forms, and their latest votes.
4. Look for common ground. The bipartisan bills page shows legislation both parties passed together, a reminder that structural reforms tend to last when they are built with more than one party.