Senate Judiciary Committee Report on President Roosevelt's Court-Packing Plan (1937)

The Committee on the Judiciary, to whom was referred the bill (S. 1392) to reorganize the judicial branch of the Government, after full consideration, having unanimously amended the measure, hereby reports the bill adversely with the recommendation that it does not pass. . . .


The committee recommends that the measure be rejected for the following primary reasons:

The bill does not accomplish any one of the objectives for which it was originally offered.

It applies force to the judiciary and in its initial and ultimate effect would undermine the independence of the courts.

It violates all precedents in the history of our Government and would in itself be a dangerous precedent for the future.

The theory of the bill is in direct violation of the spirit of the American Constitution and its employment would permit alteration of the Constitution without the people's consent or approval; it undermines the protection our constitutional system gives to minorities and is subversive of the rights of individuals.

It tends to centralize the Federal district judiciary by the power of assigning judges from one district to another at will.

It tends to expand political control over the judicial department by adding to the powers of the legislative and executive departments respecting the judiciary.


The measure was sent to the Congress by the President on February 5, 1937, with a message setting forth the objectives sought to be attained.

It should be pointed out here that a substantial portion of the message was devoted to a discussion of the evils of conflicting decisions by inferior courts on constitutional questions and to the alleged abuse of the power of injunction by some of the Federal courts. These matters, however, have no bearing on the bill before us, for it contains neither a line nor a sentence dealing with either of those problems.

Nothing in this measure attempts to control, regulate, or prohibit the power of any Federal court to pass upon the constitutionality of any law---State or National.

Nothing in this measure attempts to control, regulate, or prohibit the issuance of injunctions by any court, in any case, whether or not the Government is a party to it.

If it were to be conceded that there is need of reform in these respects, it must be understood that this bill does not deal with these problems.


As offered to the Congress, this bill was designed to effectuate only three objectives, described as follows in the President's message:

  1. To increase the personnel of the Federal courts "so that cases may be promptly decided in the first instance, and may be given adequate and prompt hearing on all appeals";
  2. To "invigorate all the courts by the permanent infusion of new blood";
  3. To "grant to the Supreme Court further power and responsibility in maintaining the efficiency of the entire Federal judiciary."

The third of these purposes was to be accomplished by the provisions creating the office of the Proctor and dealing with the assignment of judges to courts other than those to which commissioned.

The first two objectives were to be attained by the provisions authorizing the appointment of not to exceed 50 additional judges when sitting judges of retirement age, as defined in the bill, failed to retire or resign. How totally inadequate the measure is to achieve either of the named objectives, the most cursory examination of the facts reveals.


In the first place, as already pointed out, the bill does not provide for any increase of personnel unless judges of retirement age fail to resign or retire. Whether or not there is to be an increase of the number of judges, and the extent of the increase if there is to be one, is dependent wholly upon the judges themselves and not at all upon the accumulation of litigation in any court. To state it another way the increase of the number of judges is to be provided, not in relation to the increase of work in any district or circuit, but in relation to the age of the judges and their unwillingness to retire.

In the second place, as pointed out in the President's message, only 25 of the 237 judges serving in the Federal courts on February 5, 1937, were over 70 years of age. Six of these were members of the Supreme Court at the time the bill was introduced. At the present time there are 24 judges 70 years of age or over distributed among the 10 circuit courts, the 84 district courts, and the 4 courts in the District of Columbia and of that 24, only 10 are serving in the 84 district courts, so that the remaining 14 are to be found in 4 special courts and in the 10 circuit courts. Moreover, the facts indicate that the courts with the oldest judges have the best records in the disposition of business. It follows, therefore, that since there are comparatively few aged justices in service and these are among the most efficient on the bench, the age of sitting judges does not make necessary an increase of personnel to handle the business of the courts.

There was submitted with the President's message a report from the Attorney General to the effect that in recent years the number of cases has greatly increased and that delay in the administration of justice is interminable. It is manifest, however, that this condition cannot be remedied by the contingent appointment of new judges to sit beside the judges over 70 years of age, most of whom are either altogether equal to their duties or are commissioned in courts in which congestion of business does not exist. It must be obvious that the way to attack congestion and delay in the courts is directly by legislation which will increase the number of judges in those districts where the accumulation exists, not indirectly by the contingent appointment of new judges to courts where the need does not exist, but where it may happen that the sitting judge is over 70 years of age. . . .


The next question is to determine to what extent "the persistent infusion of new blood" may be expected from this bill.

It will be observed that the bill before us does not and cannot compel the retirement of any judge, whether on the Supreme Court or any other court, when he becomes 70 years of age. It will be remembered that the mere attainment of three score and ten by a particular judge does not, under this bill, require the appointment of another. The man on the bench may be 80 years of age, but this bill will not authorize the President to appoint a new judge to sit beside him unless he has served as a judge for 10 years. In other words, age itself is not penalized; the penalty falls only when age is attended with experience.

No one should over look the fact that under this bill the President, whoever he may be and whether or not he believes in the constant infusion of young blood in the courts, may nominate a man 69 years and 11 months of age to the Supreme Court, or to any court, and, if confirmed, such nominee, if he never had served as a judge, would continue to sit upon the bench unmolested by this law until he had attained the ripe age of 79 years and 11 months.

We are told that "modern complexities call also for a constant infusion of new blood in the courts, just as it is needed in executive functions of the Government and in private business." Does this bill provide for such? The answer is obviously no. As has been just demonstrated, the introduction of old and inexperienced blood into the courts is not prevented by this bill.

More than that, the measure, by its own terms, makes impossible the "constant" or "persistent" infusion of new blood. It is to be observed that the word is "new," not "young." . . .

It thus appears that the bill before us does not with certainty provide for increasing the personnel of the Federal judiciary, does not remedy the law's delay, does not serve the interest of the "poorer litigant" and does not provide for the "constant" or "persistent infusion of new blood" into the judiciary. What, then, does it do?


The answer is clear. It applies force to the judiciary. It is an attempt to impose upon the courts a course of action, a line of decision which, without that force, without that imposition, the judiciary might not adopt.

Can there be any doubt that this is the purpose of the bill? Increasing the personnel is not the object of this measure; infusing young blood is not the object; for if either one of these purposes had been in the minds of the proponents, the drafters would not have written the following clause to be found on page 2, lines 1 to 4, inclusive:

"Provided, That no additional judge shall be appointed hereunder if the judge who is of retirement age dies, resigns, or retires prior to the nomination of such additional judge."

Let it also be borne in mind that the President's message submitting this measure contains the following sentence:

"If, on the other hand, any judge eligible for retirement should feel that his Court would suffer because of an increase of its membership, he may retire or resign under already existing provisions of law if he wishes to do so."

Moreover, the Attorney General in testifying before the committee *** said:

"If the Supreme Court feels that the addition of six judges would be harmful to that Court, it can avoid that result by resigning."

Three invitations to the members of the Supreme Court over 70 years of age to get out despite all the talk about increasing personnel to expedite the disposition of cases and remedy the law's delay. One by the bill. One by the President's message. One by the Attorney General.

Can reasonable men by any possibility differ about the constitutional impropriety of such a course?

Those of us who hold office in this Government, however humble or exalted it may be, are creatures of the Constitution. To it we owe all the power and authority we possess. Outside of it we have none. We are bound by it in every official act.

We know that this instrument, without which we would not be able to call ourselves presidents, judges, or legislators, was carefully planned and deliberately framed to establish three coordinate branches of government, every one of them to be independent of the others. For the protection of the people, for the preservation of the rights of the individual, for the maintenance of the liberties of minorities, for maintaining the checks and balances of our dual system, the three branches of the Government were so constituted that the independent expression of honest difference of opinion could never be restrained in the people's servants and no one branch could overawe or subjugate the others. That is the American system. It is immeasurably more important, immeasurably more sacred to the people of America, indeed, to the people of all the world than the immediate adoption of any legislation however beneficial. . . .


Shall we now, after 150 years of loyalty to the constitutional ideal of an untrammeled judiciary, duty bound to protect the constitutional rights of the humblest citizen even against the Government itself, create the vicious precedent which must necessarily undermine our system? The only argument for the increase which survives analysis is that Congress should enlarge the Court so as to make the policies of this administration effective.

We are told that a reactionary oligarchy defies the will of the majority, that this is a bill to "unpack" the Court and give effect to the desires of the majority; that is to say, a bill to increase the number of Justices for the express purpose of neutralizing the views of some of the present members. In justification we are told, but without authority, by those who would rationalize this program, that Congress was given the power to determine the size of the Court so that the legislative branch would be able to impose its will upon the judiciary. This amounts to nothing more than the declaration that when the Court stands in the way of a legislative enactment, the Congress may reverse the ruling by enlarging the Court. When such a principle is adopted, our constitutional system is overthrown!

This, then is the dangerous precedent we are asked to establish. When proponents of the bill assert, as they have done, that Congress in the past has altered the number of Justices upon the Supreme Court and that this is reason enough for our doing it now, they show how important precedents are and prove that we should now refrain from any action that would seem to establish one which could be followed hereafter whenever a Congress and an executive should become dissatisfied with the decisions of the Supreme Court.

This is the first time in the history of our country that a proposal to alter the decisions of the court by enlarging its personnel has been so boldly made. Let us meet it. Let us now set a salutary precedent that will never be violated. Let us, of the Seventy-fifth Congress, in words that will never be disregarded by any succeeding Congress, declare that we would rather have an independent Court, a fearless Court, a Court that will dare to announce its honest opinions in what it believes to be the defense of the liberties of the people, than a Court that, out of fear or sense of obligation to the appointing power, or factional passion, approves any measure we may enact. We are not the judges of the judges. We are not above the Constitution.

Even if every charge brought against the so-called "reactionary" members of this Court be true, it is far better that we await orderly but inevitable change of personnel than that we impatiently overwhelm them with new members. Exhibiting this restraint, thus demonstrating our faith in the American system, we shall set an example that will protect the independent American judiciary from attack as long as this Government stands. . . .