[Paleopsych] NYT: Roosevelt Asks Power to Reform Courts, Increasing the Supreme Bench to 15 Judges; Congress Startled, But Expected to Approve

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Roosevelt Asks Power to Reform Courts, Increasing the Supreme Bench to 15 
Judges; Congress Startled, But Expected to Approve


    This event took place on February 5, 1937, and was reported in the The
    New York Times the following day.

Roosevelt Asks Power to Reform Courts, Increasing the Supreme Bench to 15
Judges; Congress Startled, But Expected to Approve

    Surprise Message

    Asks Authority to Name New Justices if Old Do Not Quit at 70


    Constitutional Amendment and Statutory Judiciary Curb Would Be


    Bench Would Be Expanded, Appeals Speeded and Defense Assured in

By Arthur Krock

Special to The New York Times


       Bill is Introduced: Robinson and Bankhead Act for Passage by Senate
     and House: Majority for Proposal: But Most Conservative Democrats Are
        Silent and Republicans Are Hostile: Speculation on Justices: Those
               Mentioned for New Places Include J. M. Landis, Richberg and

                                                      President's Message

         Aim to Pack Court, Declares Hoover: Roosevelt Move Transcends Any
        Partisanship Question, Ex-President Holds: Widely Criticized Here:
       'Shameful Day' in Our History, Colby Asserts -- Justice Black Hails
                                                        'Greatest Advance'

         Stocks Drop Fast on Court Message: Sweeping Declines Stop a Rise,
        Making Market the Year's Second Largest: Brief Rallies Are Futile:
     List Closes Only Slightly Above Day's Lows -- Some Bankers Say Effect
                                                        Will Be Mitigated.

                          Supreme Court Keeps Up With Its Work, Say Aides

        Six on High Bench Eligible to Retire: They and Six Justices of the
          Circuit Courts Could Come Under Roosevelt Plan: 13 Other Jurists
      Listed: These Members of the Lower Courts Also Have Reached 70, With
                                                       10 Years of Service
                                                           OTHER HEADLINES

          Progress Is Made in Motors Parley; Eviction Deferred: Working on
       Terms: Subcommittee Begins Study of Specific Issues in Strike: Will
    Report This Morning: Pressure From Roosevelt is Credited With Averting
       Complete Collapse: Murphy Blocks Ousters: Halts Arrest of Union Men
        After Court Issues Eviction Writs at Flint: Great Grandmother, 72,
                                                Joins Picket Line in Flint

      $100,000 Cafe Shut by Racket Bombs, Owner Testifies: Stench Missiles
         Used for Ten Months After He Refused to Pay $3,000, He Says: Four
    Others Tell Ills: Restaurant Manager Describes Threats to His Children
                                                         and $2,000 Demand

       Friars Face Trial As Spanish Rebels: 'People's Court' Will Assemble
           Monday for Case Against 60 Escorial Guardians: 1,500 Others Are
    Indicted: Speedy Hearings Are Planned for Prisoners Who Fill the Jails
                                                                 in Madrid

         West Virginian Saved After 8 Days in Mine; Had No Food, Forced to
                                                      Drink Sulphur Water

    W ashington, Feb. 5 -- The President suddenly, at noon today, cut
    through the tangle of proposals made by his Congressional leaders to
    "bring legislative and judicial action into closer harmony" with a
    broadaxe message to Congress recommending the passage of statutes to
    effect drastic Federal court reforms.

    The message- prepared in a small group and with deepest secrecy -- was
    accompanied by a letter from the Attorney General and by a bill drawn
    at the Department of Justice, which would permit an increase in the
    membership of the Supreme Court from nine to a maximum of fifteen if
    judges reaching the age of 70 declined to retire; add a total of not
    more than fifty judges to all classes of the Federal courts; send
    appeals from lower court decisions on constitutional questions, direct
    to the Supreme Court, and require that government attorneys be heard
    before any lower-court injunction issue against the enforcement of any
    act of Congress.

    Avoiding both the devices of constitutional amendment and statutory
    limitation of Supreme Court powers, which were favored by his usual
    spokesmen in Congress, the President endorsed an ingenious plan which
    will on passage give him the power to name six new justices of the
    Supreme Court.

    Power Left to the President

    Under the provisions of the bill drawn by the Department of Justice
    form Congress, if the six now sitting justices who are more than 70
    years of age to not resign, the President is empowered to name a new
    member for each justice in that category. These are the Chief Justice
    and Justices Brandeis, Van Devanter, Butler, McReynolds and
    Sutherland. Thus, after the passage of the bill, which is generally
    expected, the court will number anywhere from nine to fifteen

    Although the message - an unusually long one for the President- was a
    general criticism of the effects upon government and private litigants
    of overburdened courts and superannuated judges, and stressed a
    general plea to Congress to make provision of a "a constant and
    systematic addition of younger blood" to "vitalize the courts,"
    Congress instantly recognized its outstanding feature and purpose.

    Although the message outlined basic defects in the administration of
    justice in the United States, and contained many reforms to which no
    exception will be taken, Congress quickly sensed that the President
    had hurdled the present majority of the Supreme Court on his way to
    the goal he outlined in his opening message of the session. This, as
    he stated it, is to find "means to adapt our legal forms and our
    judicial interpretation to the actual present needs of the largest
    progressive democracy in the modern world."

    Variety of Emotions Aroused

    That passage was the one which had brought the most cheers from the
    floors of Congress when the President uttered it. To achieve its aim
    was the object of all the proposed amendments and statutes which have
    heaped high in the Congressional hoppers since the opening of the
    session. When members of the Senate and the House became aware of the
    ingenious but effective manner in which the President planned to
    attain his objective without touching the Constitution or the powers
    of the court, they were torn by a variety of emotions.

    Senator Robinson, the majority leader in his branch, said the message
    was "in no sense a violent innovation" and that it would be
    "substantially favored." Speaker Bankhead said the proposal was based
    on "a sound principle of judicial reform." Senator Pope remarked that
    the President had "neatly finessed the Supreme Court," which, so far
    as the majority is concerned, is correct.

    Conservative Democrats, however, especially those in the Senate,
    gagged at the proposals affecting the Supreme Court. Many of them
    maintained prudent silence, waiting to see how the cat of public
    opinion will jump. But Senator Burke attacked a plan to "pack the
    court," and Senator Byrd said curtly that "orderly means" to amend the
    Constitution were provided in that instrument. There will be real
    opposition on the Democratic side, there seems to be no doubt that the
    Attorney General's bill, which was quickly referred to committees in
    the two branches, will be moved steadily to passage.

    Republicans Sharply Critical

    The Republicans were at first stunned; then they burst into violent
    criticism directed at the Supreme Court extensions. They accused the
    President of trying to wreck the judiciary. Senator Vandenberg said
    angrily that behind the "fine words" a fell intent was evident.
    Representative Snell said that the administration, "having already
    destroyed the economic stability of the country, apparently will not
    be content until it destroys the judicial stability." Senator Borah
    viewed much of the proposal with grave alarm. But these were few in
    contrast with the long lines of approving Democrats.

    The President's plan had a dramatic setting and one he obviously
    enjoyed to the full. Last night at a White House reception he
    teasingly said to several guests - newspaper men among them - that
    "there will be big news tomorrow" and laughingly rejected pleas to
    indicate what the news would be.

    The staff at the executive offices was assembled at 6:30 o'clock this
    morning to perform the requisite clerical labor. The Cabinet, with the
    Vice President, was summoned for 10 o'clock and held in session for an
    hour while the President read his message and the letter and bill
    prepared by the Attorney General. It is understood that the Cabinet
    expressed approval of the plan and admiration for the ingenuity of its
    process. Warm with gratulation, the President was then ready for his
    regular Friday audience with the newspaper correspondents.

    To them also he read all the documents and at one point in the reading
    - before the fact was obvious- looked up and said, "this applies
    equally to the Supreme Court."

    The thoughts of many of those who watched and heard him instantly
    reverted to a press conference after the unanimous nullification of
    the NRA by the Supreme Court. Then the President was in a different
    mood. Then he was frustrated and angry and spoke of "horse-and-buggy"
    decisions in the machine age. Today he was calm and confident, plainly
    reflecting his conviction that, since the Republicans made his future
    Supreme Court appointments and issue in the last campaign, he had a
    huge popular mandate for what he was doing to change conditions in a
    court where the New Deal has sustained nine major legal defeats.

    The President's message can be briefly summarized as follows:

    In line with recent recommendations to reorganize the government's
    administrative machinery, this plan is to permit the judiciary to
    function in tune with modern conditions. The President, alone being
    directed by the Constitution to advise Congress on the state of the
    Union, is carrying out that direction herewith, and is further
    animated by the fact that Congress is empowered by the Constitution to
    see that the Federal judiciary functions properly.

    That judiciary once more finds itself without sufficient personnel,
    although its quarters have been improved. It required over a hundred
    years to excuse the Supreme Court justices from "riding circuit."
    Congress has often changed the numbers and duties of judges; the
    Supreme Court's number has been altered five times. Today there are
    not enough judges to meet the needs of litigants. Additional judges
    are required, since court delay results in injustice. Lawsuits have
    been made a luxury available to the few, and unjust settlements have
    thereby been compelled.

    The Supreme Court is deeply burdened and in the last fiscal year it
    declined to hear 87 percent of the pleas presented by private
    litigants. Sheer necessity to keep up with its work forced that.

    The question of "aged or infirm judges," while delicate, must be met.
    Twenty-five lower court Federal judges, over 70 and eligible to retire
    on full pay, have not done so. "They seem to be tenacious of the
    appearance of adequacy" (a sly quotation from Charles Evans Hughes's
    book on the Supreme Court). This situation induced Attorneys General
    McReynolds and Gregory to propose, during the Wilson administrations,
    that when a circuit or district judge failed to retire at 70 an
    additional judge should be appointed in his court.

    The law of 1919, passed to cover this, merely authorized such an
    appointment on a Presidential finding that the judge over 70 was
    inefficient. No President should be asked to make such a finding.

    A judge's task calls for the use of full energies; modern complexities
    require a constant infusion of new blood in courts as everywhere else.
    To superannuated men facts become blurred, or they have lost the
    disposition to dig for them. This is recognized elsewhere in the

    It is therefore recommended that provision be made for additional
    judges in all courts, "without exception," where judges are sitting
    beyond the retirement age. It was not intended to create a "static

    Suggests a Federal Court "Proctor"

    To relieve congestion in the lower courts, Congress should empower the
    Chief Justice of the United States to appoint a "proctor" to watch all
    the courts and calendars in the Federal system. On his information the
    Chief Justice should be authorized to send in judges where needed. A
    bill is attached to afford general relief. The method it proposes is
    not costly, and limits the number of new judges. No question of
    constitutional law is raised, and no compulsory retirement is
    proposed, since there are and have been many judges beyond 70 whose
    services represent great value to the government. However, the bill
    extends the voluntary retirement and pay provisions of lower court
    judges to the justices of the Supreme Court, for whom there now is no
    retirement provision.

    [There is, however, a law which provides that after ten years of
    service on the Supreme Court bench, and after reaching the age of 70,
    justices may resign and receive full pay for the remainder of their

    Conflicting decisions in lower courts call for remedial action. These
    have brought the entire administration of justice dangerously near to
    disrepute. Rights accorded to citizens in one Federal court district
    are denied to citizens in others. It takes from a year to three years
    before the Supreme Court can settle the conflicts, which robs the law
    of "its most indispensable element, equality."

    The conflicts and delays also produce uncertainty- for the government,
    and for private litigants- over too long periods. Finally, injunctions
    are too freely granted, sometimes without notice to the government. By
    postponing in various ways the effective dates of acts of Congress,
    the judiciary is assuming an additional function and is becoming more
    and more a "scattered, loosely organized and slowly operating third
    house of Congress."

    This state of affairs has come gradually.

    Calls for Notice Before Trial

    Other recommendations- that no constitutional cause be tried and
    judged in a lower court without ample notice to the Attorney General
    so that he may defend the law. That lower court decisions in
    constitutional cases shall go at once to the Supreme Court and take
    precedence there. These, with the provisions of the attached bill,
    will eliminate congestion, make the judiciary less static and more
    elastic, assist the Supreme Court and help to make litigants more
    nearly equal before the law.

    "If these measures achieve their aim," the President concluded, "we
    may be relieved of the necessity of considering any fundamental
    changes in the powers of the courts or the Constitution of our
    government - changes which involve consequences so far-reaching as to
    cause uncertainty as to the wisdom of such a course."

    Cumming's Letter the Background

    The Attorney General's letter furnished the background for the
    President's argument and recommendations and presented statistics of
    the law's delay. The bill, prepared in advance for Congress in true
    1933 style, is divided into five sections and makes the provisions
    heretofore recounted.

    While all of the legislative and executive personnel of the government
    and the press gallery buzzed all day with discussion of the President
    's imitation of Alexander the Great and the Gordian knot, the justices
    of the Supreme Court in public at any rate, maintained complete and
    dignified silence.

    It was noted that once more the magic number six finds favor in the
    President's mind. He used to talk of cutting the Cabinet down from ten
    to six. Then he approved the Brownlow committee's recommendation of
    six executives assistants "with a passion for anonymity." Today it is
    the Supreme Court which is to be increased by six if the bill passes,
    and the justices now over 70 years of age are all alive and refuse to

    It was also noted that the President announced his plan a few days
    before arguments on the Wagner act begin in the Supreme Court and in a
    week when a judicial order- in Flint, Mich.- has been disregarded both
    by government and by the private parties to the controversy which
    produced this writ.

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