Abstract

The story of Franklin D. Roosevelt's Court-packing plan is a twice-told tale. 1 Every history of America in the twentieth century recounts the familiar chronicle -- that in February of 1937, FDR, in response to a series of decisions striking down New Deal laws, asked Congress for authority to add as many as six Justices to the Supreme Court, only to be outwitted by the Court itself when Chief Justice Charles Evans Hughes demonstrated that Roosevelt's claim that the Court was not abreast of its docket was spurious; when the conservative Justice Willis Van Devanter retired, thereby giving the President an opportunity to alter the composition of the bench; and when, above all, the Court, in a series of dramatic decisions in the spring of 1937, abandoned its restricted conception of the scope of the powers of both state and national governments. In short, it is said, Roosevelt's Court-packing plan went down to defeat because, in the catchphrase that swept Washington that spring, "a switch in time saved nine." 2 All true enough. But what this familiar account leaves out is that Roosevelt, apparently vanquished in the spring of 1937, brought out another Court scheme -- little different from the first -- in early summer, and, despite all that had gone on before, came very close to putting it through. One can well understand, though, how the traditional version has found such acceptance, for by early June of 1937 Roosevelt appeared to be thoroughly whipped. After the events of May ...

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