George Washington to New Hampshire, 29 December 1777 (Detail, GLC03706) Great Depression, World War II, and the American West: Court Restructuring – Two Perspectives Perspective A - Roosevelt's Fireside Chat - March 9, 1937 by Debbie Coicca Cinco Ranch High School Katy (Houston), Texas Mid-Hudson Regional Information Center http://www.mhric.org/fdr/chat9.html In 1935-36, the Court struck down eight of FDR's New Deal programs, including the National Recovery Act (NRA) and the Agricultural Adjustment Act (AAA). Public antijudicial sentiment intensified; many critics questioned the constitutionality of the concept of judicial review itself. After his election victory, however, FDR submitted to Congress early in February 1937 a plan for "judicial reform," which forever came to be known as his attempt to "pack" the Supreme Court by adding six additional justices. His fireside chat of March 9, 1937 explains the rationale behind his court restructuring plan and attempts to circumvent criticism by appealing directly to the American people in terms which they could understand. Fireside Chat on Reorganization of Judiciary - Abridged Last Thursday I described in detail certain economic problems which everyone admits now face the Nation. For the many messages which have come to me after that speech, and which it is physically impossible to answer individually, I take this means of saying "thank you." Tonight, sitting at my desk in the White House, I make my first radio report to the people in my second term of office. In 1933, you and I knew that we must never let our economic system get completely out of joint again - that we could not afford to take the risk of another great depression. We also became convinced that the only way to avoid a repetition of those dark days was to have a government with power to prevent and to cure the abuses and the inequalities which had thrown that system out of joint. We then began a program of remedying those abuses and inequalities - to give balance and stability to our economic system - to make it bomb-proof against the causes of 1929. Today, we are only part-way through that program - and recovery is speeding up to a point where the dangers of 1929 are again becoming possible, not this week or month perhaps, but within a year or two. National laws are needed to complete that program. Individual or local or state effort alone cannot protect us in 1937 any better than ten years ago. If we learned anything from the depression, we will not allow ourselves to run around in new circles of futile discussion and debate, always postponing the day of decision. The Courts, however, have cast doubts on the ability of the elected Congress to protect us against catastrophe by meeting squarely our modern social and economic conditions. We are at a crisis in our ability to proceed with that protection. I want to talk with you very simply about the need for present action in this crisis - the need to meet the unanswered challenge of one-third of a Nation ill-nourished, ill-clad, ill-housed. Last Thursday I described the American form of Government as a three-horse team provided by the Constitution to the American people so that their field might be plowed. The three horses are, of course, the three branches of government - the Congress, the Executive and the Courts. Two of the horses are pulling in unison today; the third is not. Those who have intimated that the President of the United States is trying to drive that team overlook the simple fact that the President, as Chief Executive, is himself one of the three horses. It is the American people themselves who are in the driver's seat. It is the American people themselves who expect the third horse to pull in unison with the other two. I hope that you have re-read the Constitution of the United States in these past few weeks. Like the Bible, it ought to be read again and again. Since the rise of the modern movement for social and economic progress through legislation, the Court has more and more often and more and more boldly asserted a power to veto laws passed by the Congress and State Legislatures in complete disregard of this original limitation. In the last four years the sound rule of giving statutes the benefit of all reasonable doubt has been cast aside. The Court has been acting not as a judicial body, but as a policy-making body. When the Congress has sought to stabilize national agriculture, to improve the conditions of labor, to safeguard business against unfair competition, to protect our national resources, and in many other ways to serve our clearly national needs, the majority of the Court has been assuming the power to pass on the wisdom of these acts of the Congress - and to approve or disapprove the public policy written into these laws. In the face of these dissenting opinions, there is no basis for the claim made by some members of the Court that something in the Constitution has compelled them regretfully to thwart the will of the people. The Court, in addition to the proper use of its judicial functions, has improperly set itself up as a third house of the Congress - a super-legislature, as one of the justices has called it - reading into the Constitution words and implications which are not there, and which were never intended to be there.We have, therefore, reached the point as a nation where we must take action to save the Constitution from the Court and the Court from itself. We must find a way to take an appeal from the Supreme Court to the Constitution itself. We want a Supreme Court which will do justice under the Constitution and not over it. In our courts we want a government of laws and not of men. I want - as all Americans want - an independent judiciary as proposed by the framers of the Constitution. That means a Supreme Court that will enforce the Constitution as written, that will refuse to amend the Constitution by the arbitrary exercise of judicial power - in other words by judicial say-so. It does not mean a judiciary so independent that it can deny the existence of facts which are universally recognized. When I commenced to review the situation with the problem squarely before me, I came by a process of elimination to the conclusion that, short of amendments, the only method which was clearly constitutional, and would at the same time carry out other much-needed reforms, was to infuse new blood into all our Courts. We must have men worthy and equipped to carry out impartial justice. But, at the same time, we must have Judges who will bring to the Courts a present-day sense of the Constitution - Judges who will retain in the Courts the judicial functions of a court and reject the legislative powers which the courts have today assumed. What is my proposal? It is simply this: whenever a Judge or Justice of any Federal Court has reached the age of seventy and does not avail himself of the opportunity to retire on a pension, a new member shall be appointed by the President then in office, with the approval, as required by the Constitution, of the Senate of the United States. That plan has two chief purposes. By bringing into the judicial system a steady and continuing stream of new and younger blood, I hope, first, to make the administration of all Federal justice speedier and, therefore, less costly; secondly, to bring to the decision of social and economic problems younger men who have had personal experience and contact with modern facts and circumstances under which average men have to live and work. This plan will save our national Constitution from hardening of the judicial arteries. There is nothing novel or radical about this idea. It seeks to maintain the Federal bench in full vigor. It has been discussed and approved by many persons of high authority ever since a similar proposal passed the House of Representatives in 1869. Those opposing this plan have sought to arouse prejudice and fear by crying that I am seeking to "pack" the Supreme Court and that a baneful precedent will be established. Is it a dangerous precedent for the Congress to change the number of the Justices? The Congress has always had, and will have, that power. The number of justices has been changed several times before, in the administration of John Adams and Thomas Jefferson - both signers of the Declaration of Independence - Andrew Jackson, Abraham Lincoln and Ulysses S. Grant. Like all lawyers, like all Americans, I regret the necessity of this controversy. But the welfare of the United States, and indeed of the Constitution itself, is what we all must think about first. Our difficulty with the Court today rises not from the Court as an institution but from human beings within it. But we cannot yield our constitutional destiny to the personal judgement of a few men who, being fearful of the future, would deny us the necessary means of dealing with the present. I have thus explained to you the reasons that lie behind our efforts to secure results by legislation within the Constitution. I hope that thereby the difficult process of constitutional amendment may be rendered unnecessary. Even if an amendment were passed, and even if in the years to come it were to be ratified, its meaning would depend upon the kind of Justices who would be sitting on the Supreme Court Bench. An amendment, like the rest of the Constitution, is what the Justices say it is rather than what its framers or you might hope it is. This proposal of mine will not infringe in the slightest upon the civil or religious liberties so dear to every American. I am in favor of action through legislation: First, because I believe that it can be passed at this session of the Congress. Second, because it will provide a reinvigorated, liberal-minded Judiciary necessary to furnish quicker and cheaper justice from bottom to top. Third, because it will provide a series of Federal Courts willing to enforce the Constitution as written, and unwilling to assert legislative powers by writing into it their own political and economic policies. During the past half century, the balance of power between the three great branches of the Federal Government has been tipped out of balance by the Courts in direct contradiction of the high purposes of the framers of the Constitution. It is my purpose to restore that balance. You who know me will accept my solemn assurance that in a world in which democracy is under attack, I seek to make American democracy succeed. You and I will do our part. 1. Describe the metaphor that FDR uses for the American form of government? In your viewpont describe another appropriate metaphor that could be employed in this situation. 2. Explain FDR's main criticisms of the actions of the Supreme Court regarding the New Deal. 3. How does FDR defend his court restructuring plan? Give specific examples. 4. Why does FDR argue against a constitutional amendment to restructure the judiciary? 5. If you were President Roosevelt, how would you deal with the Court's inflexibility? Explain your viewpoint.