F.D.R.'s Scheme

Known as the Nine Old Men, they make today's Justices seem spry. In the mid-1930s, six members of the Supreme Court were over 70, and none was younger than 61. A majority was highly conservative on economic questions and deeply suspicious of the power of the Federal Government. The court took a dim view of President Roosevelt's economic recovery program, striking down one piece of New Deal legislation after another, starting with the National Industrial Recovery Act in 1935.

After his landslide victory the following year, Roosevelt tried to neutralize his judicial nemeses by "packing the court." He proposed appointing one additional new Justice, up to a total of six, for every sitting Justice over 70. "This plan will save our national Constitution from hardening of the judicial arteries," F.D.R. declared. It was a bald power play, a flouting of the separation of powers. A constitutional crisis loomed.

But "a switch in time saved nine." Quite possibly influenced by F.D.R.'s election mandate, Justice Owen Roberts changed sides and cast the swing vote to uphold important New Deal acts, including the National Labor Relations Act and a bill establishing Social Security old-age benefits. Another Justice, Willis Van Devanter, one of the conservative "Four Horsemen" who had been most ; resolutely opposed to F.D.R.'s pro" gram, announced his retirement. The New Deal was saved. The court-packing plan died in Congress.

Before the end of his second term, F.D.R. was able to fill five vacancies on the court. By the time he died in 1945 he had appointed eight Supreme Court Justices, more than any other President since George Washington. F.D.R. wanted Justices who would show judicial restraint, who would defer to the authority of the Federal Government. The men he chose did show restraint, but only on economic matters. Two of his appointees, Hugo Black and William O. Douglas, went on to lead a revolution in individual rights that culminated in the activist Warren Court era of the 1960s.