[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
Asks Authority to Name New Justices if Old Do Not Quit at 70
SEES NEED OF 'NEW BLOOD'
Constitutional Amendment and Statutory Judiciary Curb Would Be
LOWER COURTS AFFECTED
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
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
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
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
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
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
[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
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
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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