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Chasing Court-Packing Could Derail Democrats’ Big Plans

FDR wasted an electoral mandate on a bid to expand the Supreme Court. It caused lasting damage to his party and the progressive agenda.

SAUL LOEB/AFP via Getty Images

The 1936 election was a stunning victory for the Democrats. President Franklin D. Roosevelt routed Republican Alf Landon, winning the popular vote by 24 points and all but two states in the Electoral College, while the party added to their existing supermajorities in Congress. The unassailable clarity of the result vindicated Roosevelt’s audacious first term, in which he made unprecedented claims to executive authority and pushed the controversial domestic policies of the New Deal.

“The country after Roosevelt’s reelection was closer to one-party rule than it had been since Reconstruction,” said Jeff Shesol, author of Supreme Power: Franklin Roosevelt vs. The Supreme Court. But Republicans weren’t the only ones who had been repudiated by the election; it was also, Shesol said, “a tremendous rebuke of the court,” which had gutted major New Deal programs, striking down more legislation between May 1935 and June 1936 than it had during any other 13-month period in American history.

After his reelection, Roosevelt sought to capitalize on his electoral mandate by pushing to expand the court. There’s interest among Democrats in such a move today. Seven of the 18 remaining Democratic candidates for president have indicated they’re open to structurally reforming the court. At last week’s debate, South Bend Mayor Pete Buttigieg stood by his proposal to expand the court to 15 justices, which he has said would “depoliticize” it.

But history provides a cautionary tale for any future Democratic president who would consider packing the court before pushing legislative priorities such as, say, Medicare for All or the Green New Deal. Not only did Roosevelt’s failed gambit cost him and his party tremendous political capital; it also prevented more meaningful policies from coming to fruition.


The beginning of 1937 was an optimistic time for Democrats. Though millions were still out of work, the dark cloud of the Great Depression seemed to be lifting, and “the smell of prosperity [was] in the air,” wrote William E. Leuchtenburg in Franklin D. Roosevelt and the New Deal. With the Republicans reduced to something less than an opposition party, Roosevelt “was looking forward to the expansion of the New Deal,” said David Woolner, a senior fellow at the Roosevelt Institute and author of Last 100 Days: FDR at War and at Peace.

In a series of articles in The New Republic, Cabinet officials and major Democratic figures—including labor icon John L. Lewis, Secretary of Agriculture Henry A. Wallace, and Secretary of Commerce Harry Hopkins—laid out an ambitious progressive agenda to strengthen collective-bargaining laws, write new price and profit controls for industry that would benefit organized labor, expand soil-conservation programs, shorten the work week to 30 hours, institute equal pay for men and women, substantially increase the construction of government-subsidized housing projects, and stay out of the war.

The president himself suggested that such progress was near at hand. “We have set our feet upon the road of enduring progress,” he said in his second inaugural address. “Shall we pause now and turn our back upon the road that lies ahead? Shall we call this the promised land? Or, shall we continue on our way?”

Neither, it seemed. Instead of introducing new social or economic legislation, Roosevelt surprised the nation by announcing, only two weeks later, that he would seek to reform the Supreme Court. “Roosevelt didn’t talk to anybody about this,” said Woolner. “He did not seek congressional buy-in. He announced it rather shockingly.”

Roosevelt’s plan would have allowed him to add an additional justice for every justice who had been on the court for 10 years or more and who was 70.5 years or older. (Five justices met these criteria.) Roosevelt claimed this would revitalize the court and make it more efficient, but “it was a B.S. justification for court-packing,” said Jonathan Alter, author of The Defining Moment: FDR’s Hundred Days and the Triumph of Hope. “He introduced court-packing under false pretenses.” Roosevelt’s obvious motive, thinly disguised, was to create a court that would rubber-stamp his agenda.

FDR would spend the next six months not leading the masses toward “the promised land,” but trapped in a fruitless battle with Congress. From February 5, when it was introduced, to July 22, when it was finally pronounced dead, the court-packing plan monopolized the Senate’s attention. “It preoccupied Washington and became its own drama,” said Alter. “He had a huge mandate. . . [but] he wrecked it by being arrogant.” The only legislation passed by Congress during this period were extensions for New Deal programs—nothing to address the “one-third of a nation ill-housed, ill-clad, ill-nourished” that was the subject of Roosevelt’s inaugural address. “What Roosevelt found,” Shesol said, “was that the court-packing issue had severely impaired his ability to get things done.”

Much of the opposition to FDR’s plan came from within the Democratic Party. For the first time, “you had Democratic voices, significant Democratic voices within the party, opposing Roosevelt in public and in Congress,” Woolner said. Liberals feared that Roosevelt’s plan would ultimately weaken the court as a guardian of civil rights by allowing future presidents with more regressive views to easily install justices hostile to minority rights. For conservative southern Democrats, the court-packing plan was their chance to oppose the president’s expansive claims to federal and executive authority without risking popular disapproval. Catalyzed by this bill, these conservatives joined forces with the Republicans to form an anti-New Deal coalition that fractured the Democratic Party. “[The bloc] caused all manner of mischief from this point forward,” Shesol said. “This is a relationship that endures. These are the Democrats that eventually become Republicans.”

The great irony of this saga is that Roosevelt would eventually get his court. Justice Owen Roberts, in “the switch in time that saved nine,” began ruling in the administration’s favor, and over the course of his long presidency Roosevelt would appoint nine justices to the Court, several of them architects of the New Deal. But the victory was to some extent hollow: As Leuchtenburg wrote, though the “new Court might be willing to uphold new laws ... an angry and divided Congress would pass few of them for the justices to consider.”

When the court-packing bill was finally shelved in July, the latent forces that it unleashed would continue to prove disruptive. The anti–New Deal bloc would consistently block the administration’s policies after conservative gains in the 1938 midterms. Though certain parts of Roosevelt’s agenda would, after much delay, be enacted, the only legislation that approached the transformative nature of the New Deal was the Fair Labor Standards Act and the reauthorization of the Agricultural Adjustment Act in 1938, according to Woolner. The unique confluence of historic electoral mandate,  popular president, and congressional supermajorities was wasted.

“The Supreme Court packing plan is very significant because it was Roosevelt’s greatest mistake,” Woolner said. “It is often referred to as ‘The End of Reform.’”


Historical analogies to contemporary politics have their limits. Meaningful details are obscured or forgotten, while others, taken out of context and exaggerated, appear determinative. While such analogies do not predict outcomes, they can illustrate possibilities—and the failure of Roosevelt’s court-packing plan is especially noteworthy now because the odds of its success were much greater than anyone could expect of such a plan in 2021.

The left’s agenda today—insofar as it’s a genuinely actionable legislative program and not merely aspirational dream-making—would rival if not exceed Johnson’s Great Society and Roosevelt’s New Deal in scope. Yet the congressional margins in 2021 will be exceedingly narrow, if not insurmountable. The Democrats must hold on to the House and win a filibuster-proof majority in the Senate, which appears impossible. They must also, of course, win the White House. If they somehow accomplish those feats, and a President Buttigieg (or Warren… or Harris...) decides to pursue court-packing, there’s no telling what damage it could do to the party. But it’s clear, if history is any guide, that it would thwart the very ideas that helped lift Democrats to power.