Why Nine Justices? The Democrat Who Challenged FDR’s Supreme Court-Packing Scheme

00:00:10
Speaker 1: This is Lee Habib, and this is Our American Stories, the show where America is the star and the American people. Up next, the story out of Texas, and about a man who was certainly of his time, but put his career and influence on the line to do the right thing for our country. To tell a story is Josiah Daniel. Take it away.

00:00:31
Speaker 2: Josiah Hatton was a confirmed bachelor, so he had no offspring. He was born in rural Tennessee in 1875, and he moved with his family to Garland, Texas, in 1890, 1890 or 1891. And as a child or a young man, a teenager, he entered into an arrangement with a book publisher to make door-to-door book sales in rural Tennessee. He was so young his father had to co-sign the contract with him, and he became disgruntled with the publisher, felt that he wasn’t receiving the commissions to which he was due based upon his successes in the sales, so he wrote a series of hot letters to the publisher in which he threatened to sue them. I see this as an early manifestation of his lawyerly instincts. The traditional way to become a lawyer in the U.S. was to ‘read the law,’ or to become an apprentice in a lawyer’s office. You would help the lawyer in his practice, probably copying documents and things. At the same time, the lawyer would teach the apprentice the rules of law and how you be a lawyer. Summers did that for two years in the office of the City Attorney of Dallas, and after that, he passed what was then a pretty simple bar exam and became a licensed lawyer. He was, therefore, more or less a self-taught lawyer and constitutional scholar. I believe Sumners was always a little embarrassed that his formal education was so skimpy. He had one year of a formal high school. So, when he got to Congress, he was in the minority party, the Democratic Party, so he didn’t have a lot to do legislatively, and he did walk over to the Library of Congress and just read law books and history books and taught himself a lot of history, particularly focusing on the history of the Constitution, all the way back through English legal history, back to the Norman Conquest and even earlier. And that’s, that’s how he became a well, well-recognized and skillful constitutional scholar. Was reading it at the Library of Congress, and even FDR recognized it.

00:03:16
Speaker 3: Franklin D.

00:03:17
Speaker 2: Roosevelt, the President, asked Hatton Sumners to write a constitution for the Philippine Islands. At that point, the Philippines were a territory of the U.S.A., but Congress a few years earlier had legislated that it was to be made an independent nation over a period of time leading up to about 1941, and Sumners wrote a constitution that was the model or draft from which the Philippine people themselves, in their own Constitutional Convention, wrote their own constitution.

00:03:55
Speaker 3: They didn’t accept everything, or…

00:03:57
Speaker 2: Even maybe very much of what he proposed in his constitute, but the fact that Roosevelt picked Sumners shows that he reposed a fair amount of confidence in Sumners as a constitutional scholar and constitutional lawyer. And some people think Sumners could have been a candidate for the Supreme Court. I guess maybe if the court-packing plan had passed. He was quite opposed, and he’d put his political influence, his clout, his reputation on the line in opposing it. Any attempt to understand the 1937 court-packing crisis should begin with the Great Depression. “On a Sunday, neighbor who got to my nageration, you’re at the radio, tell you about the banking crisis and about the measures we would take into meeting. In that way, I tried to make plans in the country. Various facts that might not arise, have been misunderstood, and in general to provide a means of understanding, which I believed didn’t much for worst off contin…” So, the stock market crashed in October 1929. That’s only ten months after Herbert Hoover had been inaugurated president, and the U.S. economy, over the next several years, entered its worst period in all of U.S. history. In some industries, unemployment reached almost 50 percent, and in the cities there were soup lines and people living in cardboard shanties. So, Roosevelt won in a landslide by about 23 million votes to 16 million votes, and the voters also elected strong majorities of Democrats in the House and Senate for the first time in a long time. So, FDR had plenty of power to enact his platform, and his advisors generated a surge of innovative legislation that Congress promptly enacted, all of which is known collectively as the New Deal.

00:06:12
Speaker 1: And you’re listening to Josiah Daniel tell the story of Hatton Sumners, and my goodness, what a story you’re hearing about. Just for instance, how he got to practice law. There was a day where you could apprentice and then simply take the bar, and you’re a lawyer. I spent three years at the University of Virginia School of Law, and I really didn’t learn anything about how to practice law, and I paid a lot of money for it too. We learned some of our Lincoln stories. He too had a ‘skimpy’ education, but my goodness, he taught himself and gave himself a world-class education, as Hatton Sumners did. When we come back, we’re going to learn how this man, who helped write the Constitution as a congressman from Texas, a Democrat, for the President of the United States, FDR, put his own career in jeopardy by opposing President Roosevelt’s court-packing scheme. That story continues here on Our American Stories. This is Lee Habib, host of Our American Stories. Every day on this show, we tell stories of history, faith, business, love, loss, and your stories. Send us your story, small or large, to our email oas@OurAmericanStories.com. That’s oas@OurAmericanStories.com. We’d love to hear them and put them on the air. Our audience loves them too. And we return to Our American Stories and the story of Hatton Sumners and the court-packing crisis of 1937. Let’s get back to the story. Here again is former lawyer, an expert on Hatton, Josiah Daniel.

00:08:31
Speaker 2: The specific programs ranged from temporary relief or jobs and infrastructure projects for the destitute and the unemployed, and also long-term structural reforms such as taking the nation off the gold standard, the Wagner Act that validated labor contracts and labor unions, Social Security, the whole alphabet slew of alphabet agencies and laws and programs. Risingly, the businesses and the individuals who disliked the President’s legislated changes hired lawyers, and they sued to invalidate the new laws based on various constitutional arguments. So, some of the New Deal measures began to encounter adverse rulings by the Supreme Court. At that time, the Court consisted of eight Associate Justices and one Chief Justice. The Chief Justice was Charles Evans Hughes. Four of those nine formed a block that began to vote consistently against the challenged New Deal programs. They were known colloquially as the Four Horsemen of the Apocalypse. Four others tended to be more progressive and to vote to validate the New Deal, and that left one swing vote, Owen Roberts. And in the third year of the New Deal, 1935, Roberts began to vote with the Four Horsemen, and the Supreme Court invalidated a dozen New Deal laws: the Triple A, the Agricultural Adjustment Act, the Coal Act, the Municipal Bankruptcy Act that had been sponsored by Hatton Sumners, the Railroad Retirement Act, the National Industrial Recovery Act, and a minimum wage law. In fairness, it’s true that the same Court also sustained two dozen New Deal laws, but never before had the Supreme Court invalidated so many laws in such a short period of time that had been passed on behalf of a president. Only three were decided by a single vote, and some were unanimous. But in the controversy, people began to notice that all of the justices were rather well-aged. They were 70, 77 years of age at a time when the average life expectancy of a male in the U.S. was 60. So, some political commentators began to lampoon the Court as the Old Nine Men. In addition, opponents of the New Deal obtained more than 2,000 injunctions against New Deal programs. So, as I call it, Roosevelt had a serious litigation problem. He was deeply concerned, he was frustrated, and even angry about it, and in the presidential election of November 3, 1936, Roosevelt won his second term with an even larger landslide. So, he truly believed that he had a renewed mandate for the New Deal from the people, and literally two weeks after his inauguration, Roosevelt made a surprising announcement at the White House. He had summoned the leaders of Congress, including Sumners, who was the House Judiciary Committee chair, and he proposed a bill under which each justice aged 70 or more who declined to resign one additional seat on the Court would be automatically created. So, based on the ages of the justices, this implied there would be six new justices for a total of fifteen. FDR also proposed some other measures that he said would promote the efficiency of the federal judiciary, and he called the whole thing the Judicial Reform Bill. But the court-packing proposal was obviously the main point. Public consternation erupted. The nation’s newspapers editorialized for the next five and a half months, almost all against it. Gallup Poll consistently found the majority of Americans against it. People were arguing about it on street corners and in public spaces, and they literally covered Congress up with letters and telegrams, mostly in opposition. But the President persistently pushed it forward, including by his famous radio fireside chats and by personally lobbying members of Congress, and it created what historians call a crisis. Now, I guess I should pause and just cover a few fundamentals of the U.S. Constitution that are relevant to this story. Article Three, Section One says the judicial power of the United States invests in one Supreme Court and such inferior courts as Congress from time to time establishes. So, Congress not only establishes the lower federal courts, but it also determines who are the rest of the Justices that sit on the Supreme Court. From 1789 to 1869, the number of Justices on the Supreme Court ranged from three to ten, but since then, the number has been nine. Also, Article Three provides that all federal judges hold their office during good behavior, which has always been understood to mean for life, and shall receive compensation for services that shall not be diminished during their continuance in office. So, life tenure and salary protection are the two principal means by which Supreme Court Justices are protected against raw political pressure, as is applied to legislators and even to the President. So, the idea is that federal judge—this should be completely impartial, free of political pressure, free from fear or favor in deciding questions of law. And this is the concept called judicial independence. So, what is court-packing? Well, it’s defined by the Law Dictionary as the notion of adding seats to the Supreme Court in order to create a new majority of justices favorable to the legislative and political program of a president. And the significance of a court-packing proposal, then, is: to pack the Court threatens to interfere in judicial independence and in the normal operation of checks and balances as applied to the judicial branch of the national government, as has been the norm over our national history.

00:15:49
Speaker 1: And you’ve been listening to Josiah Daniel tell the story of Hatton Sumners, and my goodness, what a story you’re hearing about. Just for instance, how he got to practice law. There was a day where you could apprentice and then simply take the bar, and you’re a lawyer. I spent three years at the University of Virginia School of Law, and I really didn’t learn anything about how to practice law, and I paid a lot of money for it too. We learned some of our Lincoln stories. He too had a ‘skimpy’ education, but my goodness, he taught himself and gave himself a world-class education, as Hatton Sumners did. When we come back, we’re going to learn how this man, who helped write the Constitution as a congressman from Texas, a Democrat, for the President of the United States, FDR, put his own career in jeopardy by opposing President Roosevelt’s court-packing scheme. That story continues here on Our American Stories. This is Lee Habib, host of Our American Stories. Every day on this show, we tell stories of history, faith, business, love, loss, and your stories. Send us your story, small or large, to our email oas@OurAmericanStories.com. That’s oas@OurAmericanStories.com. We’d love to hear them and put them on the air. Our audience loves them too. And we return to Our American Stories and the story of Hatton Sumners and the court-packing crisis of 1937. Let’s get back to the story. Here again is former lawyer, an expert on Hatton, Josiah Daniel.

00:18:46
Speaker 2: The Constitution doesn’t say anything about how many justices will sit on the Supreme Court. That’s up to Congress to decide. And Congress started with three, and it raised it to four in 1801. Then, after the Civil War, when Andrew Johnson became the President, the Republican Congress wanted to deny him an appointment to the Supreme Court. By this point in time, Congress had raised the number of Justices to ten. So, Congress reduced it to nine, depriving Johnson of an appointment, and it’s been at nine ever since. So, it’s not in the Constitution, the number nine. It’s a matter of legislation, but it’s also been a long-standing matter. People are used to it, and people believe that it’s an inherent part of the Supreme Court, and there are scholars who will say that, based on their studies of judicial process, nine is a pretty ideal number. An even number of Justices just wouldn’t work because there’s always the possibility of a tie, so we need an odd number. And the caseload of the Supreme Court has always been such.

00:20:01
Speaker 3: In fact, the Court often has been…

00:20:03
Speaker 2: Running a little bit behind and handling its docket because it has so many cases.

00:20:07
Speaker 3: But you need nine.

00:20:09
Speaker 2: Justices to be able to write the opinions expressing the decisions of the courts on the issues presented in those cases. You really do need nine.

00:20:20
Speaker 2: Different authors to be able to write them all. That’s kind of the magic of the number nine. But FDR’s argument for expanding the Court was very simply—and he acknowledged this in some of his fireside chats—was to gain a majority of favorable votes on the Court that would vote to sustain and not reverse his New Deal programs.

00:20:49
Speaker 3: He was very explicit about that.

00:20:51
Speaker 2: And with nine, and with Owen Roberts voting with the Four Horsemen, there were five of nine that were a threat to his most cherished programs, such as Social Security. That was really the reason, and honestly, I can’t think of any other really good reason people have ever advanced.

00:21:10
Speaker 3: For adding more.

00:21:11
Speaker 2: It’s almost always been to obtain a majority, and that clearly threatens judicial independence. And Sumners, he was quite opposed, and he’d put his political influence, his clout, his reputation on the line in opposing it. Although he was a member of the New Deal team. The President wanted Sumners to file the court-packing bill, and Sumners definitely sidestepped it, and he then had to bite his tongue in public, and he got himself ready. He introduced a bill called the Retirement Bill, which he thought would solve the problem for FDR, at the same time preserving a Court of nine. And that was to make it possible for Supreme Court Justices, for the first time, to retire from the Court and to keep their compensation at the same amount for the rest…

00:22:18
Speaker 3: Of their lives.

00:22:20
Speaker 2: There were several of the Supreme Court Justices who wanted to retire, but they felt that they financially couldn’t. And in correspondence with his constituents, he wrote to a Dallas minister. He wrote, “It’s just good common practical sense to make it possible for these men on the Supreme Court to retire voluntarily when they want to do so. I am putting everything I have into the effort to work this problem out. It’s like a fisherman trying to land a big fish in difficult water. I do not believe anybody on the bank and tell him very well what to do to others.” He confided that he believed he was the only person in the nation who could do this, and the thing he was trying to do did, in fact, only take a short amount of time.

00:23:15
Speaker 3: More, the Retirement Act…

00:23:21
Speaker 2: Was passed.