Presidential Commission on the Supreme Court of the United States
audience broke out in applause for rival arguments on the plan when they were shown on the screen.[136]
While the public as well as members of Congress debated the merits and flaws of the President’s plan, the Court itself took action in a manner that surprised many observers. “Within weeks of the bill’s introduction … the Supreme Court began prudently to change course by upholding New Deal measures that months earlier it seemed prepared to invalidate.”[137] On March 29, 1937, the Supreme Court handed down its decision in West Coast Hotel Co. v. Parrish, upholding a state minimum-wage statute for women that was nearly identical to one that it had struck down a year earlier.[138] On April 12, the Court decided NLRB v. Jones & Laughlin Steel Corp., in which it held the National Labor Relations Act to be a valid exercise of Congress’s power to regulate interstate commerce, appearing to diverge from its position in a similar case from 1936.[139] And on May 24, in Steward Machine Co. v. Davis, the Court upheld the unemployment compensation provisions of the Social Security Act of 1935—again seemingly taking a broader view of congressional power than in previous cases.[140] All three were 5–4 decisions. This seeming about-face was dubbed the “switch in time that saved nine” by some observers[141] and “the constitutional revolution of 1937” by others.[142] Also in May 1937, Justice Willis Van Devanter—one of the so-called “Four Horsemen” who had steadfastly opposed most New Deal legislation—announced his retirement from the Court.[143]
By the summer of 1937, however, Roosevelt’s proposal was foundering in Congress. It was ultimately defeated in July 1937. The controversy over the Court “helped weld together a bipartisan coalition of anti-New Deal Senators”; it also led to a “deeply divided” Democratic party.[144] Henry Wallace, a member of Roosevelt’s cabinet during the Court-packing controversy, opined that “[t]he whole New Deal really went up in smoke as a result of the Supreme Court fight.”[145] But the battle over the Court was not the only factor in this diminution of support for the President’s plan. Other pressures included “dismay at the harsh recession of 1937–1938, anxiety over relief spending, and resentment at sit-down strikes.”[146]
Many observers—at the time and since—charged Roosevelt with overreaching.[147] They argue that had the plan succeeded, its passage would have “set a precedent from which the institution of judicial review might never recover.”[148] On this view, Roosevelt’s effort to expand the Court failed on two fronts: It was voted down in Congress and it hobbled Roosevelt and the Democratic Party in their efforts to consolidate the progressive reforms that formed the core of the New Deal agenda.[149] “[A]lthough the battle was won, the war was lost.”[150]
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